The Act of One Conspirator Rollin M

Hastings Law Journal

Volume 26 | Issue 2 Article 1

1-1974 The Act of One Conspirator Rollin M. Perkins

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Recommended Citation Rollin M. Perkins, The Act of One Conspirator, 26 Hastings L.J. 337 (1974). Available at: https://repository.uchastings.edu/hastings_law_journal/vol26/iss2/1

This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. The Act of One Conspirator

By ROLLIN M. PERKINS*

IS it correct to say that the act of one conspirator, in furtherance of the unlawful plan, is imputed to his coconspirator? To be -more specific: If one conspirator commits the crime which was -the very objective of the wrongful combination, is the coconspirator guilty of that target offense, without having done more than join in the conspiracy? In Pinkerton,1 the Supreme Court answered that question with an unqualified "yes." 2 However, a different position was adopted for proposed legislation by -the Model Penal Code. Under it, "liability for a substantive crime as an accomplice cannot be predicated on -the sole fact of having been party to a conspiracy to commit that crime. .. . And the proposed new Federal Criminal Code would reverse "a judicial- ly developed doctrine which imposes complicity liability based solely upon membership in the conspiracy."'4 With the propriety of the Pinkerton formulation thus in question, an examination of the underpinnings of that case should provide direction to the appropriate answer. In Pinkerton,5 two brothers, Walter and Daniel, were charged with

* Professor of Law, University of California, Hastings College of the Law. 1. Pinkerton v. United States, 328 U.S. 640 (1946). 2. The Court said: "A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project, or was merely a part of the ramifi- cations of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement." Id. at 647-48 (emphasis added). 3. MODEL PENAL CODE § 5.03(6), Comment at 143 (Tent. Draft No. 10, 1960). "[The jury] should not be told that it (conspiracy) establishes complicity as a matter of law." MODEL PENAL CODE § 2.04(3), Comment at 23 (Tent. Draft No. 1, 1953). 4. Hearings on Reform of Federal Criminal Law Before the Subcomm. on Crim- inal Law and Proceduresof the Senate Comm. on the Judiciary, 92d Cong., 1st Sess., pt. 1, at 225 (1971) [hereinafter cited as 1971 Hearings]. Some of the "Commissioners wish to express concern that . . . subsection (5) of this section overrules the Supreme Court's decision in Pinkerton v. United States, 328 U.S. 640 (1946)." 1971 Hearings,supra at 225-26. 5. 328 U.S. 640 (1946).

[337] THE HASTINGS LAW JOURNAL [Vol. 26 conspiracy to violate the Internal Revenue Code and with ten substantive violations. The evidence established the conspiracy and most of the substantive offenses charged, but there was no evidence that Daniel participated directly in the commission of these offenses; indeed, the crimes were shown to have been committed by Walter. Whether Daniel did more than merely join the conspiracy was not submitted to the jury; rather, they were instructed that if you are satisfied from the evidence beyond a reasonable doubt that the two defendants were in an unlawful conspiracy . . then you would have a right . . . to convict each of these defendants on all these substantive counts, provided the acts referred to in the substantive counts were acts in furtherance of the unlawful con- s-piracy or object of the unlawful conspiracy, which you have found from the evidence existed. 6 In affirming Daniel's conviction of several of the substantive offenses, as well as of the conspiracy, the Court held that this instruction was correct. This ruling was reinforced a few years later, when the Court stated In Pinkerton v. United States . . . a conspiracy and substantive offenses were charged. We held that a conspirator could be held guilty of the substantive offense even though he did no more than join the conspiracy, provided that the substantive offense was committed in furtherance of the conspiracy and as a part of it.7 Nothing new, it should be emphasized, was involved in Pinkerton. As early as 1827 Mr. Justice Story, speaking for the Court, said: So, in cases of conspiracy and riot, when once the conspiracy or combination is established, the act of one conspirator, in the prosecution of the enterprise, is considered the act of all, and is evidence against all. Each is deemed to consent to, or command, what is done by any other in furtherance of the common object.8 And -the rule had been repeated by the Court down through the years.9 It had also been announced long ago by other courts. It is also a familiar general rule that, when several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance or in prosecution of the common design for which they combine. 10 6. Id. at 645-46 n.6. 7. Nye & Nissen v. United States, 336 U.S. 613, 618 (1949). 8. United States v. Gooding, 25 U.S. (12 Wheat.) 460, 469 (1827). 9. See, e.g., Hyde v. United States, 225 U.S. 347, 359 (1912); Logan v. United States, 144 U.S. 263, 308-09 (1892). 10. Phillips v. State, 26 Tex. App. 228, 9 S.W. 557, 560 (1888). "Proof of conspiracy is only proper, so far as it may tend to show a common design to encourage the murder charged against the prisoners. It may be introduced for the purpose of establishing the position of the members of the combination as accessories to the crime of murder." Spies v. People, 122 Ill. 1, 102, 12 N.E. 865, 915 (1887). November 1974] COCONSPIRATORS

At -times -the language has been very specific. Thus it was said that the coconspirator would be guilty of murder even if Harper went back alone and, faithful to the common design, delivered the fatal blows in the absence of ,Bolden. It is well settled that after a conspiracy to commit an unlawful act is established, every act of each member of the conspiracy in pursuance of their original plan is in contemplation of law the act of all of them." In other words: It is hornbook law that a conspirator is criminally responsible for the acts of his co-conspirators which are committed in furtherance of the common design12 even though he was not present when the acts were committed. And this rule has been incorporated in some of the recently adopted criminal codes.' 3 However widespread this treatment of coconspirators may be, it is by no means universal. A different view was expressed by a Massa- chusetts court long ago: The fact of the conspiracy being proved against the prisoner, is to 'be weighed as evidence in the case having a tendency to prove that the prisoner aided, but it is not in itself to be taken as a legal presumption of his having aided unless disproved by 'him. It is a question of evidence for the consideration of the jury.' 4 And after this formulation had been repeated, in substance, in other cases, "'5 it was recently spelled out in detail: If the defendant agreed with the other persons to commit the crimes of robbery and assault and did nothing more, he is guilty It was said that "only the acts and declarations of a co-conspirator, done in furtherance and execution of the common design, are admissible against a conspirator on trial for the common offense .... " People v. McQuade, 110 N.Y. 284, 307, 18 N.E. 156, 166 (1888). 11. People v. Harper, 25 Cal. 2d 862, 870, 156 P.2d 249, 254 (1945), quoted in part with approval in People v. Weiss, 50 Cal. 2d 535, 563, 327 P.2d 527, 543-44 (1958). 12. Commonwealth v. Burdell, 380 Pa. 43, 49, 110 A.2d 193, 196 (1955). See also Williams v. State, 81 Ala. 1, 5, 1 So. 179, 183 (1887); People v. Keefer, 65 Cal. 232, 233, 3 P. 818, 819 (1884); Shelton v. Commonwealth, 261 Ky. 18, 23-24, 86 S.W. 2d 1054, 1057 (1935) (the court speaks of an "uncharged conspiracy participation"); Skidmore v. State, 80 Neb. 698, 700, 115 N.W. 288, 289 (1908); People v. Luciano, 277 N.Y. 348, 358-61, 14 N.E.2d 433, 435-36 (1938); People v. Swersky, 216 N.Y. 471, 477, 111 N.E. 212, 214 (1916); People v. McKane, 143 N.Y. 455, 462-63, 38 N.E. 950, 951 (1894); State v. Alston, 17 N.C. App. 712, 714-15, 195 S.B.2d 314, 315 (1973); Wheelock v. State, 154 Tenn. 66, 289 S.W. 515 (1926); Rex v. Meyrick, 21 Crim. App. 94, 45 T.L.R. 421 (1929). 13. See, e.g., MiNN. STATS. ANN. § 609.05(1) (1963); Wis. STATS. ANN. § 939.05 (2) (c)(1955). 14. Commonwealth v. Knapp, 26 Mass. (9 Pick.) 494, 518 (1830). 15. Commonwealth v. Stasiun, 349 Mass. 38, 47-48, 206 N.E.2d 672, 678-79 (1965); Commonwealth v. Bloomberg, 302 Mass. 349, 355-56, 19 N.E.2d 62, 66 (1939). THE HASTINGS LAW JOURNAL [Vol. 26

of criminal conspiracy; 'but he was not charged with that crime. That alone does not make him an accessory ,before the fact or a principal to the substantive crime which was the objective of the conspiracy. 16 This was essentially -the position adopted by the drafters of the Model Penal Code, as previously noted. 7 And as mentioned earlier, the proposed federal rule would seek to alter the standard "which imposes complicity liability based solely upon membership in the con- ' 8 spiracy.' Of course, conspiracy and complicity are not identical; it is possible to have either without the other. The classic illustration of complicity without conspiracy is found in Tally.'9 D, and others, planned to murder X. Y, who knew of this plot, sent a telegram to X to warn him of the plan, so that he might guard against it. A, who knew of both D's murder plan and Y's warning, sent a telegram which was intended to prevent the delivery of Y's wire. And A's telegram delayed Y's warning so that the latter message was not delivered in time, and X was murdered. A's complicity in X's murder is clear because he gave important aid to D, but there was no conspiracy because D was not even aware of the help he was receiving. The most obvious illustration of conspiracy without complicity in the target offense is found in the case of withdrawal. If one conspirator commits the target crime after having received timely and effective no- tice of withdrawal from his confederate, only the perpetrator himself is guilty of the substantive offense.20 Despite this possibility of separate existence, however, complicity and conspiracy normally go hand-in-hand. 21 Whether membership

16. Commonwealth v. Perry, 357 Mass. 149, 152, 256 N.E.2d 745, 747 (1970). See also Commonwealth v. Richards, 293 N.E.2d 854 (Mass. 1973); Commonwealth v. Beneficial Fin. Co., 275 N.E.2d 33 (Mass. 1971); Commonwealth v. French, 357 Mass. 356, 259 N.E.2d 195 (1970). 17. See note 3 supra. 18. See note 4 supra. 19. State ex rel. Martin v. Tally, 102 Ala. 25, 15 So. 722 (1894). "However ... it is stated in Pereira v. United States, 347 U.S. 1, 11-12, 74 S. Ct. 358, 364, 98 L. Ed. 435 (1954): "'Aiding, abetting, and counseling are not terms which presuppose the existence of an agreement. Those terms have a broader application, making the defendant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy. [Citation omitted]'" United States v. Valencia, 492 F.2d 1071, 1073-74 (9th Cir. 1974). 20. State v. Peterson, 213 Minn. 56, 4 N.W.2d 826 (1942). 21. The "question is whether the seller of goods, in themselves innocent, becomes a conspirator with--or, what is in substance the same thing, an abettor of-the buyer because he knows that the buyer means to use the goods to commit a crime." United November 1974] COCONSPIRATORS in the conspiracy should be sufficient for conviction of the target offense committed in furtherance thereof, or whether something more should be required for this purpose, can thus be considered to best advantage in the light of a careful consideration of the underlying con- cepts. It is well to keep in mind Holmes's insistence that [a] conspiracy is constituted by -an agreement, it is true, but it is the result of the agreement, rather than the agreement itself, just as a partnership, although constituted by a contract, is not the contract, but is a result of it. . . . A conspiracy is a partnership in criminal purposes.22 This conceptualization -added "color" to the formulation of the idea, but the idea itself was not new. Hawkins, writing in the early 1700's, referred to conspiracies as "confederacies, '2 3 and 'the "confederacy" label has been repeated -at times. 24 Another term frequently employed is "combination. '25 The drafters of the Model Penal Code purported to reject the concept of combination, or -the "analogy of partnership' as the nature of conspiracy,2 6 but they failed to convince even themselves. Thus, in discussing the subject they make such references as to the "continuous conspiratorial relationship" 27 or "a single and continuous association for criminal purposes. ' ' 8 The agreement, however, is indispensable to conspiracy.2 9 There must be a "meeting of 'the minds," 30 or "joint assent of the minds." 31 This principle was excluded from the preliminary draft of the Model

States v. Falcone, 109 F.2d 579, 581 (2d Cir. 1940) (Hand, J.) (emphasis added). Judge Hand answered the question in the negative but the obvious alternative is that the seller would be both. 22. United States v. Kissel, 218 U.S. 601, 608 (1910). 23, W. HAWKINS, PLEAS OF THE CRowN 348 (6th ed. Leach 1788). 24, Conspiracy is an "unlawful confederacy." Commonwealth v. Hunt, 45 Mass. (4 Met.) 111, 118 (1842). See also Commonwealth v. Ward, 1 Mass. 473, 474 (180 ). 25. United States v. Gooding, 25 U.S. (12 Wheat.) 460, 469 (1827); Miller v. United States, 382 F.2d 583, 586 (9th Cir. 1967); State v. King, 104 Iowa 727, 729, 74 N.W. 691, 692 (1898); Commonwealth v. Hunt, 45 Mass. (4 Met.) 111, 123 (1842). 26. MODEL PENAL CODE § 503.1, Comment at 117 (Tent. Draft No. 10, 1960). 27. Id. at 120. 28. Id. at 130. 29. Indispensability of the agreement sometimes leads to the error of referring to it as the "gist of the crime." See Roll v. People, 132 Colo. 1, 284 P.2d 665 (1955). 30. Krulewitch v. United States, 336 U.S. 440, 447-48 (1949) (Jackson, J., con- curring). 31. State v. Phillips, 240 N.C. 516, 521, 82 S.E.2d 762, 766 (1954). It must be shown that "the accused intended to join ... " Miller v. United States, 382 F.2d 583, 587 (9th Cir. 1967). THE HASTINGS LAW JOURNAL [Vol. 26

Penal Code, but such an approach was rejected by the council on the ground that conspiracy requires "a true consensus."32 This does not necessitate "the formalities of an agreement"33 or "any formal words":3 "[s]ince a conspiracy by its very nature is a clandestine offense, proof of the agreement must ordinarily rest upon inference drawn from competent circumstantial evidence."3 5 It may be established by the conduct of the parties.36 So far as the common law is concerned, the crime of conspiracy is complete and punishable as soon as the unlawful combination is formed,37 but under many of the modem statutes some overt act in furtherance of -the plan is required.38 One court held that the overt act needed for conviction of conspiracy under such a statute must at least amount to an attempt to commit the target offense,39 but this view did not even survive a rehearing: the court reversed its position and held that any act in furtherance of the conspiratorial plan was sufficient, whether or not it amounted to an attempt.4" In fact such overt act may "be of very small significance. "41 The act of one conspirator alone is sufficient to satisfy the statutory

32. MODEL PENAL CODE § 5.03(1), Comment at 117 (Tent. Draft No. 10, 1960). 33. United States v. Varelli, 407 F.2d 735, 741 (7th Cir. 1969). 34. State v. Cole, 107 S.C. 285, 288-89, 92 S.E. 624, 625 (1917). 35. Miller v. United States, 382 F.2d 583, 586 (9th Cir. 1967); United States v. Edwards, 488 F.2d 1154, 1157 (5th Cir. 1974); accord United States v. Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973); United States v. Manfredi, 488 F.2d 588, 596 (2d Cir. 1973). 36. United States v. Kaczmarek, 490 F.2d 1031, 1035 (7th Cir. 1974); People v. Harper, 25 Cal. 2d 862, 156 P.2d 249 (1945). In finding a conspiracy between the wholesaler and retailer of narcotics, the court said: "In the instant case, Appellant engaged in multiple sales over a relatively brief period while actively encouraging Rogers to expand the volume of his business. Under these facts a conspiracy has been established." United States v. Sin Nagh Fong, 490 F.2d 527, 531 (9th Cir. 1974). 37. Piracci v. State, 207 Md. 499, 115 A.2d 262 (1955); People v. Mather, 4 Wend. 229 (N.Y. Sup. Ct. 1830); State v. Smith, 197 Tenn. 350, 273 S.W.2d 143 (1954). 38. 18 U.S.C. §§ 371, 1511(a)(1) (1970); CAL. PEN. CODE § 184 (1970). For cases applying the same standard, see United States v. Rabinowich, 238 U.S. 78, 86 (1915) and United States v. Hutchinson, 488 F.2d 484, 490 n.13 (8th Cir. 1973). 39. People v. George, 47 Cal. App. Dec. 640 (1925); cited in 13 CALIF. L. REV. 491 (1925). 40. People v. George, 74 Cal. App. 440, 241 P. 97 (1925). 41. "As an inchoate crime conspiracy fixes the point . . . at agreement to commit a crime, or at agreement coupled with an overt act which may, however, be of very small significance. It thus reaches further back into preparatory conduct than attempt .... " Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute, 61 COLUM. L. REV. 957, 958 (1961). November 1974] COCONSPIRATORS requirement of an overt act.42 This has some bearing upon the present question, as has the fact that the act of one conspirator alone will serve certain other purposes, such as to establish venue,43 or to mark the time from which the statute of limitations will run.4" Nearly a hundred years ago a court said that one who joins a conspiracy thereby becomes "a party to every act which had before been done by others . . . in furtherance of [the] common design."45 An- other court had earlier asserted that in such a situation "the acts of the others become his by adoption."46 The same idea has been expressed time and again in other words.47 The imputation to a late joiner of the previously committed act of another conspirator is free from objection if- the only purpose is to establish 'the statutorily required overt act. 48 The same is true where the reason for imputation is to show the "purpose, scope and existence" of the conspiracy.49 This is very well illustrated by McDonald,50 a kid- naping case. After the ransom had been paid and the victim released, the kidnapers hesitated to divide up the "loot" for fear the bills had been "marked" (which fear -proved to 'be well founded).51 Some

42. United States v. Rabinowich, 238 U.S. 78, 86 (1915); United States v. Ed- wards, 488 F.2d 1154, 1157 (5th Cir. 1974); Commonwealth v. O'Brien, 140 Pa. 555, 560-61, 21 A. 385, 386 (1891). See also United States v. Hutchinson, 488 F.2d 484 490 n.13 (8th Cir. 1973). 43. Conspiracy is triable wherever an overt act was committed in furtherance thereof. Hyde v. United States, 225 U.S. 347 (1912); The King v. Brisac, 102 Eng, Rep. 792 (K.B. 1803). Landing an airplane in order to refuel and to make a telephone call to see that everything was in order was a sufficient overt act to establish venue for a conspiracy prosecution. United States v. Barnard, 490 F.2d 907 (9th Cir. 1973). 44. United States v. Kissel, 218 U.S. 601 (1910). The statute of limitations on a charge of conspiracy to violate the Internal Revenue Law begins to run from the time of the last overt act alleged in the indictment. United States v. Albanese, 123 F. Supp. 732 (S.D.N.Y. 1954), aff'd, 224 F.2d 879 (2d Cir.), cert. denied, 350 U.S. 845 (1955). 45. Card v. State, 109 Ind. 415, 418, 9 N.E. 591, 593 (1886). 46. United States v. Johnson, 26 F. 682, 684 (C.C.S.D. Ga. 1885). 47. One who joins an existing conspiracy "assumes responsibility for all that has been done theretofore." Lefco v. United States, 74 F.2d 66, 68-69 (3rd Cir. 1934) (par- aphrasing Van Riper); Van Riper v. United States, 13 F.2d 961, 967 (2d Cir. 1926). The acts of the original conspirators are admissible against one who joined later. Mc- Donald v. United States, 89 F.2d 128 (8th Cir. 1937). 48. "[A]s an overt act of one of two joint conspirators, it was evidence against both." Commonwealth v. O'Brien, 140 Pa. 555, 560-61, 21 A. 385, 386 (1891). 49. United States v. Cohen, 489 F.2d 945, 949 (2d Cir. 1973). 50. McDonald v. United States, 89 F.2d 128 (8th Cir.), cert. denied, 301 U.S. 697 (1937). 51. In fact the numbers, denominations and banks of issue had been listed; an effort to have some of the "marked" bills exchanged for "unmarked" bills resulted in an arrest. THE HASTINGS LAW JOURNAL [Vol. 26 months after the receipt of the ransom the kidnapers approached M, who agreed, for a 25 percent "cut," to take $92,000 of the "marked" money to Cuba and have it exchanged for "unmarked" money. This exchange was accomplished by M. M was indicted, together with the others, -for having conspired "to kidnap, transport interstate and hold for ransom, one Edward George Bremer.""2 In affirming M's conviction, the court pointed out that a conspiracy for ransom is not complete until the parties have divided the '53 "loot. In this case, they did not dare make the division until the "marked" money had been exchanged for "unmarked" money; hence, M had entered the combination while the original conspiracy was still in existence. In stating certain rules too well settled to require citation of authority, the court mentioned "that a person who knowingly enters into a conspiracy -after its formation, but before it is ended, is equally as guilty as are those who were in it at its formation . . . .", And the acts and statements of the original kidnapers in furtherance of the conspiracy, though made before M joined the group, were admissible against him to show the existence, nature and scope of the conspiracy. Furthermore, if an earlier act of an original conspirator is imputed to a late joiner, there can be no objection if the only purpose is to fix the start of -the running of the statute of limitations, or perhaps to establish venue. But there can be no basis for imputing to one who joins an existing conspiracy any substantive offense previously committed by others in furtherance of its objectives, 5 although such a result is not unknown.56 To convict on this basis would be to establish criminal

52. 89 F.2d at 131. 53. Id. at 134, citing with approval Rettich v. United States, 84 F.2d 118, 121 (1st Cir. 1936). 54. McDonald v. United States, 89 F.2d 128, 133 (8th Cir. 1937). In 1936 Con- gress added a section which makes the receipt, possession or disposition of ransom money, knowing it to be such, a substantive offense. 18 U.S.C. § 1202 (1970). 55. "In the very nature of things, persons cannot retroactively conspire to commit a previously consummated crime." State v. Phillips, 240 N.C. 516, 522, 82 S.E.2d 762, 766 (1954). "Manifestly, a conspirator is not 'concerned' in the commission of a crime which was committed before he joined the conspiracy." People v. Weiss, 50 Cal. 2d 535, 564, 327 P.2d 527, 544 (1958). See also 8 Trial of the Major War Criminals 219-20 (Int'l Military Trib. 1946). 56. "But it is also a part of the law of joint crimes that, when a party joins an existing group already so engaged, he assumes responsibility for all that has been done theretofore." Van Riper v. United States, 13 F.2d 961, 967 (2d Cir. 1926). This was a ten-count indictment. Nine counts were for substantive offenses (mailing letters pursuant to a scheme to defraud) and a tenth count was for a conspiracy to do that which was alleged in the earlier counts. At least one defendant, Ackerson, November 1974] COCONSPIRATORS guilt by ratification, which is not a criminal-law doctrine. 57 "If she did join in the conspiracy," it was said in one case, "she is responsible for the substantive offenses later committed as a part of the conspiracy."58 Needless to say, though, neither these permissible uses of imputation to late joiners of the earlier acts of their coconspirators, nor the fact that one who joins an existing conspiracy cannot properly be convicted of substantive offenses previously committed in furtherance thereof, resolve -the question whether one who had joined in the begin- ning should be held guilty of such offense by reason of his membership alone. To that end, we turn to an examination of the law of parties. The concept of complicity had its development in the common law in connection with the law of parties, particularly in felony cases because the early courts and writers were chiefly interested in offenses of that grade. Statements can be found to the effect that the traditional requirement that a defendant have been actually or constructively present to be charged as a principal in a felony case, does not apply to the participants in a conspiracy.59 Or, that where several confederates act in pursuance of a common plan in the commission of an offense, all are held to be present where the offense is committed, and all are principals.60 But such statements are found only in jurisdictions in which the common law of parties has been substantially changed by statute. Many of the modern penal codes expressly provide that all persons con- cemed with the commission of a crime are principals. 61 Where the seems to have been convicted of substantive charges based upon offenses committed before he joined the conspiracy. 57. "If a man ratifies a thing done without his authority, this makes the act bind- ing upon him, but his subsequent assent will not relate back and make that a crime [by him] which was not [such] an offense when the act was done." Cook v. Common- wealth, 141 Ky. 439, 440, 132 S.W. 1032 (1911). "In the law of contracts a posterior recognition, in many cases, is equivalent to a precedent command; but it is not so in respect of crimes." Morse v. State, 6 Conn. 9, 13 (1825). "It is also true that one does not become an accessory before the fact by the mere approval of a crime after the event." People v. Swersky, 216 N.Y. 471, 476, 111 N.E. 212, 214 (1916). 58. Anderson v. Superior Ct., 78 Cal. App. 2d 22, 25, 177 P.2d 315, 317 (1947) (emphasis added). 59. Pierce v. State, 130 Tenn. 24, 44, 168 S.W. 851, 856 (1914). 60. State v. Hamilton, 13 Nev. 386, 391 (1878). 61. ARiz. REV. STAT. ANN. § 13-139 (1956); CAL. PEN. CODE § 971 (1970); IDAHO CODE § 19-1430 (1948); see State v. Doty, 110 Ariz. 348, 519 P.2d 47, 48 (1974); Pearce v. Territory, 11 Okla. 438, 443-45, 68 P. 504, 506 (1902); State v. Old- ham, 92 Idaho 124, 129, 438 P.2d 275, 280 (1968). "Most states have now expressly abrogated the distinction between principals and THE HASTINGS LAW JOURNAL [Vol. 26 common law remains unchanged, however, it is reversible error to give such an instruction in a felony case. 2 The law of conspiracy deter- mines who is guilty, and of what, where a conspiracy is involved, but whether one found guilty under this law is a principal or an accessory depends, at common law, on the law of parties. Moreover, one may be convicted of a substantive offense under the law of conspiracy even if no conspiracy is charged in the indictment; 63 on the other hand, if the conspiracy is not charged, it is not a lesser included offense of which defendant might be convicted, and an acquittal of the alleged substantive offense is not a bar to conviction for conspiring to perpetrate that offense. 64 A point which seems to have caused some confusion in this area is the fact that in none of the early cases in which the defendant was charged as an accessory was a count added charging him with conspiracy. The explanation is, quite simply, that such a joinder of counts was impossible. Strange as it may seem today, the early rule was that one on trial for a misdemeanor had certain advantages not available to a felony defendant.6 5 Since there were no accessories except in felony cases, 6 and conspiracy was ,at that time a misdemeanor,7 no joinder of the two was possible.68 accessories before the fact, treating all such offenders as principals or else have reached substantially the same result by providing that those who would have been accessories before the fact may be prosecuted, tried and punished as if they were principals .... The common law distinctions or their approximate equivalents are maintained in the remaining states, all but one of which, however, expressly provide that prior conviction of the principal is not a pre-condition of the prosecution of an accessory before the fact." MODEL PENAL CODE § 2.04, App. at 40-41 (Tent. Draft No. 1, 1953). 62. McKeen v. State, 7 Tex. Cr. App. 631 (1880). 63. Where the evidence showed that A was a party to a scheme involving use of the mails to defraud, and one of the other parties did so use the mails in furtherance of the scheme, A was guilty of the federal offense although the indictment did not charge a conspiracy-because such a scheme was a conspiracy. Baker v. United States, 115 F.2d 533, 540 (8th Cir. 1940); accord, Johnson v. United States, 62 F.2d 32, 34 (9th Cir. 1932); People v. Luciano, 277 N.Y. 348, 358-59, 14 N.E.2d 433, 435 (1938); People v. McKane, 143 N.Y. 455, 470, 38 N.E. 950, 954 (1894). 64. People v. Robinson, 43 Cal. 2d 132, 271 P.2d 865 (1954); Roll v. People, 132 Colo. 1, 284 P.2d 665 (1955). 65. "In the Leges Henrici, it is already the peculiar mark of an accusation of felony that the accused is allowed no counsel, but must answer at once; in all other cases a man may have counsel." 1 F. POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAw 211 (2d ed. 1898); see 4 BLACKSTONE, COMMENTARUES *355. Under the early English procedure the defendant in a felony trial was deprived of several important rights which would have been available to him in a misdemeanor case. Rex v. Westbeer, 168 Eng. Rep. 108 (K.B. 1739). 66. 1 M. HALE, PLEAS OF THE CRowN *355. 67. Commonwealth v. Hunt, 45 Mass. (4 Met.) 111, 121 (1842). 68. Joinder was permissible only if the offenses were of the same general charac- November 1974] COCONSPIRATORS

The accessory cases assumed particular significance when no valid conviction was possible because defendant had been charged -as a principal."9 Since such a case was to be disposed of on a point of procedure, there was no need to discuss evidence of other matters. Had the situation been otherwise a conspiracy would no doubt have been dis- closed in most of these cases; occasionally we even have a clue that this is so, such as a statement that there was an "understanding," 70 a ' 71 "plan," or an "arrangement ' 72 between the accessory and the principal. The notion that, even where unchanged by statute, all parties to a felony are principals if they are conspirators, is clearly refuted by the cases. Thus although the felony is committed in pursuance of a con- certed plan, those who -are not present, or so near as to be able to render assistance at the time of perpetration, are not principals, but 'accessories before the fact.73 For example, it has been held that proof of conspiracy may ,be introduced for the purpose of establishing certain 74 members of the combination as accessories to the crime of murder. In another case, where a new trial for larceny was necessary because of error, it was pointed out that a trial as accessory before the fact would be proper despite the proof of conspiracy.7 5 And in a case in which the evidence clearly indicated a conspiracy but failed to show that D was either actually or constructively present at the perpetration, it was held that "he could be guilty at most of being an -accessory before the fact." 76 7 Originally, only 'the perpetrator of a felony was called a principal. ter and the mode of trial was the same. J. ARcnBoLD, CTimiNAL PLEADING, EVIDENCE & PRAcrncE 48 (30th ed. 1938); see Regina v. Eaton, 173 Eng. Reg. 556 (Cent. Crim. Ct. 1838); Regina v. Woodhall, 12 Cox Crim. Cas. 240 (1872). "The general rule at common law was, that when an indictment charged an offense which included within it another less offense or one of lower degree, the defendant though acquitted of the higher offense, might be convicted of the less. This rule however was subject to the qualification, that upon an indictment for a felony, the defendant could not be convicted of a misdemeanor." Hanna v. People, 19 Mich. 315, 318 (1869). 69. Casey v. State, 49 Neb. 403, 68 N.W. 643 (1896); State v. Patriarca, 71 R.I. 151, 43 A.2d 54 (1945). 70. People v. Lyon, 99 N.Y. 210, 215, 1 N.E. 673 (1885). 71. State v. Loveless, 139 W. Va. 454, 464, 80 S.E.2d 442, 448 (1954). 72. State v. Wyckoff, 31 NJ.L. 65 (1864). 73. Skidmore v. State, 80 Neb. 698, 700, 115 N.W. 288, 289 (1908). 74. Spies v. People, 122 IM.1, 102, 12 N.E. 865, 915 (1887). 75. Wheelock v. State, 154 Tenn. 66, 289 S.W. 515 (1926). 76. State v. Alston, 17 N.C. App. 712, 714, 195 S.E.2d 314, 315 (1973); accord, State v. Wiggins, 16 N.C. App. 527, 192 S.E.2d 680 (1972). 77. Anciently those who "were present, aiding and assisting, were but in the nature of accessories .... " 1 M. HALE-, PLEAs OF TBE CRowN *437. THE HASTINGS LAW JOURNAL [Vol. 26

At that time there were three categories of accessories: (1) before the fact; (2) at the fact;78 and (3) after the fact. At a relatively early time -the accessory at the fact ceased to be classified in the accessorial group and was recognized as a principal in the second degree.79 Thereafter in felony cases there were two classes of principals-first degree and second degree-and two of accessories-before the fact and after the fact. 0 There are indications -that an early concept supposed one offense of which four persons might be guilty as, respectively, (1) principal in the first degree, (2) principal in the second degree, (3) accessory before the fact, and (4) accessory after the fact.8 Even at an early time, however, it was recognized that the accessory after the fact was really guilty of a distinct offense,8 2 and this differentiation has been frequently reiterated.83 The ancient phrase used to describe the act of accessoryship after the fact was "where a person knowing the felony to be committed by another, receives, relieves, comforts or assists the felon,"8' 4 but it was accepted from the first that "comfort" which had no tendency to frustrate the due course of justice was not included. S5 The assistance must have been rendered in an effort to save the known felon from apprehension, trial or punishment.86 While the crime of accessory after the fact was given the same name as that of the principal

78. Id. For a unique statute providing for an "accessory during the fact," see COLO. Rav. STAT. ANN. § 40-1-12 (1963), discussed in Martinez v. People, 166 Colo. 524, 527, 444 P.2d 641, 643 (1968). 79. "But at this day, and long since, the law hath been taken otherwise, and namely, that all that are present, aiding, and assisting, are equally principal with him that gave the stroke, ... and tho they are called principals, in the second degree, yet they are principals .... "1 M. HALE, PLEAS OF THE CROWN *437. 80. "In case of felony there are principals and accessories, and accessories be of two sorts, either before the offense be committed, or after." E. COKE, THIRD INsTI- TuTEs *138. 81. "In felony-not only the principal in the first or second degree is a felon, but so also are the accessories both before and after." 1 J. BIsHoP, NEW CRIWMNAL LAW § 605 (8th ed. 1892). 82. 1 M. HALE, PLEAS OF THE CROWN *625-26. 83. In Bollenbach v. United States, 326 U.S. 607, 611 (1946), the Court clearly indicated that accessories after the fact are not guilty of the original crime. E.g., State v. Townsend, 201 Kan. 122, 439 P.2d 70 (1968); Box v. State, 241 So. 2d 158 (Miss. 1970). "It should be pointed out that in California one who is an accessory [after the fact] to a felony thereby commits a crime which is separate and distinct from the felony itself." People v. Mitten, 37 Cal. App. 3d 879, 883, 112 Cal. Rptr. 713, 715 (1974). 84. 1 M. HALE, PLEAS OF THE CROWN *618. 85. Id. at *620. 86. Skelly v. United States, 76 F.2d 483, 487 (10th Cir.), cert. denied, 295 U.S. 757 (1935); Jaso v. State, 131 Tex. Crim. 229, 97 S.W.2d 696 (1936). November 1974] COCONSPIRATORS

(for example, "guilty of murder as accessory 'after the fact"), and at one time carried the same penalty,87 it was committed at a different time and was clearly -adistinct offense. On the other hand, at common law the principal in the first degree, -the principal in the second degree and the accessory before the fact were all guilty of the same felony."8 This merely gave recognition to the legal theory that one is considered to have done what he has caused to be done. 9 As stated in the early law: "The man who has commanded or counselled a murder has committed no crime until there has been a murder; but when the murder is committed he is guilty of it."90 And as a Tennessee court explained: The offense is compounded of the connivance of the accessory and the actual killing by the principal felon, and the crime of the accessory, though inchoate in the act of counseling, hiring, or commanding, is not consummate until the deed is actually done. The law, in such case, holds the accessory before the fact to be guilty of the murder itself, not as principal, it is true, but as accessory before the fact, for it is the doing of the deed, and not the counseling, hiring, or commanding that makes the crime complete; and it is for the murder that he is indicted, and not for the counseling and pro- curing.91 There were, however, important differences in procedure. Of special significance to -the question under consideration was -therule that one charged as a principal could not be convicted by proof showing him to be 'an accessory, 92 and one charged as accessory could not be con-

87. Under the original rule "principals and accessories were felons, and were, as such, punishable with death." 2 J. STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENG- LAND 231 (1883). A law making the accessory after the fact to a felony guilty of the felony is analo- gous to a law by which, if an officer voluntarily permitted his prisoner to escape, "this is felony in case the person be imprisoned for felony, and treason in case the person be imprisoned for treason. . . ." 1 M. HALE, PLEAs OF THE CROWN *590. 88. "Accessories before the fact, principals in the second degree, and principals in the first degree in any felony, are each considered as having committed that felony ... ." J. STEPHEN, A DIGEsT OF THE CRnINAL LAw 21 (9th ed. L. Sturge 1950). The offense of felony as principal and as accessory before the fact "is in substance the same offense." 1 M. HALE, PLEAs OF THE CROWN *626; 2 M. HALE, PLEAS OF THE CROWN *244. 89. "It is a fundamental principle of law that he who procures a felony to be committed is himself a felon, though the criminal act done is by the intervention of a third person." Lee v. Tucker, 37 So. 2d 582 (Fla. 1948). 90. 2 F. POLLOcK & F. MA1TLAND, THE HISTORY OF ENGLISH LAW 509 (2d ed. 1899). 91. State v. Ayers, 67 Tenn. 96, 100 (1874). 92. "One cannot be convicted as a principal when all that the evidence proves is that he was an accessory before the fact." Commonwealth v. Mannos, 311 Mass. 94, THE HASTINGS LAW JOURNAL [Vol. 26 victed by proof that he committed the felony as a principal. 93 Despite some early doubt,94 it was recognized that a defendant who had been found not guilty because he was charged as a principal but proved not to have been actually or constructively present at the time," or one who was charged as an accessory but was shown to have been present, could be reindicted on the appropriate charge. 6 The second trial was not barred by the first acquittal. The obvious explanation was that since he could not be convicted in the first trial by the evidence to be used against him in the second, he had not been in jeopardy. Unfortunately, this principle was often overlooked, and some courts accordingly distorted the concept. Thus it was said: In murder, the felony of an accessory is not the act of a principal; and the felony of a principal is not the act of an accessory. In fact, they are different acts, done7 at different times and places: in law, they are different crimes.9 This was assumed by some to be a necessary result because, in every early case of divergence, the accessory was tried in the jurisdiction in which his act of accessoryship occurred, rather than in the jurisdiction in which the felony was committed. But this was due to statute, and not to common-law theory. Before additional authority was granted by Parliament, grand jurors could inquire only into happenings in the

110, 40 N.E.2d 291, 300 (1942); accord, Smith v. State, 37 Ark. 274 (1881); Shelton v. Commonwealth, 261 Ky. 18, 86 S.W.2d 1054 (1935); Skidmore v. State, 80 Neb. 698, 115 N.W. 288 (1908). A plea of guilty of murder in the second degree, entered upon an indictment charging the offense of being an accessory before the fact to murder, was void. State ex rel. Muldren v. Boles, 151 W. Va. 1033, 159 S.E.2d 36 (1967). 93. One indicted as an accessory before the fact cannot be convicted on proof that he was present aiding and abetting. The King v. Gordon, 168 Eng. Rep. 359 (K.B. 1789); Agresti v. State, 2 Md. App. 278, 234 A.2d 284 (1967); accord, State v. Patri- arca, 71 R.I. 151, 43 A.2d 54 (1945). 94. 1 M. HALE, PLEAS OF THE CROWN *625-26. 95. "An accessory before the fact is one who meets every requirement of a principal in the second degree, except that of presence at the time." State v. Alston, 17 N.C. App. 712, 714-15, 195 S.E.2d 314, 315 (1973). "If a person bought poison and employed an accomplice to administer it, and was present when it was administered, he would be a principal; but he would be only an accessory if he was absent." Rex v. Plant, 173 Eng. Rep. 254, 255 (Chester Assizes, Crown Side 1836). 96. Commonwealth v. DiStasio, 297 Mass. 347, 8 N.E.2d 923 (1937); State v. Buzzell, 58 N.H. 257 (1878); State v. Wiggins, 16 N.C. App. 527, 192 N.E.2d 680 (1972); Wheelock v. State, 154 Tenn. 66, 289 S.W. 515 (1926); Rex v. Plant, 173 Eng. Rep. 254 (Chester Assizes, Crown Side 1836). 97. Commonwealth v. DiStasio, 297 Mass. 347, 357, 8 N.E.2d 923, 929 (1937); State v. Buzzell, 58 N.H. 257, 258 (1878). November 1974) COCONSPIRATORS county for which they were sworn, and not into any act done outside of that county. And to so high a nicety was this matter antiently carried, that where a man was wounded in one county, and died in another, the offender was at common law indictable in neither, because no complete act of felony was done in any of them ... .98 For the same reason, if the act of accessoryship occurred in one county and the target felony was committed in another, -the ancient law did not permit indictment of the accessory, because in one county the grand jurors could know of the act of incitement but not that it had any felon- ious consequence; whereas -the grand jurors of the other county could know of the felony but not the participation of the accessory. 99 It was to avoid this impasse that Parliament enacted a statute giving the county wherein the accessory had acted jurisdiction "as if the felony had been committed in the same county."' 00 The dispute as to whether the offense of the accessory is, or is not, the same as the offense of the principal led one court to conclude that the crime of accessory before the fact to murder was something other than "murder," and hence not within a clause of the statute of limitations which excluded "murder" from its operation; 1' 1 another court, ruling on the same point, held that the offense was "murder," and hence not protected by the general provisions of the statute.1' 2 These disputes seem to belong -to the realm of semantics in the context of the question at hand, namely, whether the act of one conspirator may properly be imputed to his absent coconspirator. But a

98. 4 W. BLACKSTONE, COMMENTARIES *303. 99. "If a man were accessary before or after in another county, than where fhe principal felony was committed, at common law it was dispunishable .... " 1 M. HALiF, PLEAS OF TmE CRowN *623. 100. But "now by the statute of 2 & 3 E.6. cap. 24, the accessory is indictable in that county, where he was accessary, and shall be tried there, as if the felony had been committed in the same county.. ." Id. If there was any reason for placing venue in the county in which the incitement occurred-other than to have the offense triable somewhere-the reason is not known. Where the accessory before the fact is still recognized the trend is to place venue in the county in which the felony was perpetrated. See MASs. GEN. LAws ANN. ch. 274, § 3 (Supp. 1974-1975). 101. A question certified to the court was: "Does the statute of limitations bar an indictment as accessory before the fact to murder after three years from the date of the offense?" State v. Patriarca, 71 R.I. 151, 153, 43 A.2d 54, 55 (1945). The court gave an affirmative answer. Id. at 163, 43 A.2d at 59. 102. In holding that the crime of accessory before the fact to murder was murder, and hence not barred by the statute of limitations, the court said: "If the crime of an accessory to a murder before the fact is not murder, it is without a specific name." Peo- ple v. Mather, 4 Wend. 229, 255 (N.Y. Sup. Ct. 1830). THE HASTINGS LAW JOURNAL [Vol. 26 very real problem area has arisen in recent years. This is where there is a "large, complex and sprawling network of crime,"'' as illustrated by the "Hernandez Cases. 1 4 In one instance, for example, sixty persons were included in an indictment which charged them with operating an illegal gambling business, and with conspiracy -to do so.1 5 Another case 06 charged both a conspiracy to defraud the government and at least twenty-six counts of substantive violations. Only a few persons were involved, but the complicated scheme included several corpora- tions, owned or controlled by one or more of the defendants, and nu- merous stock transactions, camouflaged by the complexity of the arrangement. The business dealings were shams to keep the SEC from discovering "the true acquirer, the true means of acquisitions and the true facts surrounding the acquisition."'0 7 Before taking up the special problems which may arise in connection with such large-scale associations, attention should be directed to an introductory matter, illustrated by two cases. In an English deci- 8 sion, 1 several nightclub owners had individually bribed the same police officer, each apparently without knowing of the activity of the others. According to the court, the "ingredient of community" in the person of the officer resulted in a single conspiracy to effect a public mischief by corrupting the police. A California case'0 9 was more extreme. A, whose only participation consisted of referring at least two women to an abortionist, was indicted for (1) conspiracy with the abortionist and with sixteen other persons, and (2) twenty-six counts based upon individual abortions, most of which were on women of whom A

103. MODEL PENAL CODE §§ 5.03(1)-(3), Comment at 118 (Tent. Draft No. 10, 1960). 104. A large-scale criminal syndicate, dealing with the smuggling and distribution of narcotics, included forty-nine known participants. Because of the problems involved, the trial judge divided the forty-nine into three groups for trial. These cases came to be known as the "Hernandez Cases" because Robert and Helen Hernandez of Tijuana, Mexico, were in charge. For the details of the operation, and the many problems involved, see United States v. Baxter, 492 F.2d 150 (9th Cir. 1973); United States v. Mur- ray, 492 F.2d 178 (9th Cir. 1973); United States v. Valdiva, 492 F.2d 199 (9th Cir. 1973); United States v. Mickens, 492 F.2d 211 (9th Cir. 1973). In another case, said to be one of the largest heroin-importation conspiracies of recent years, a defendant had been dealing in heroin at a million dollars a transaction. United States v. Arroyo, 494 F.2d 1316, 1317 n.3 (2d Cir. 1974). 105. United States v. Pacheco, 489 F.2d 554 (5th Cir. 1974). 106. United States v. Colasurdo, 453 F.2d 585 (2d Cir. 1971). 107. Id. at 593. 108. Rex v. Meyrick, 21 Crim. App. 94 (1929). 109. Anderson v. Superior Ct., 78 Cal. App. 2d 22, 177 P.2d 315 (1947). For a more detailed statement of the facts of the Anderson case, see Stern v. Superior CL, 78 Cal. App. 2d 9, 177 P.2d 308 (1947). November 1974] COCONSPIRATORS had never heard. She ought a writ of prohibition to prevent the -trial but this was denied on the ground that if she was party to the conspiracy she was responsible for the substantive offenses committed as a part thereof. In a relatively recent case'1 involving a charge of conspiracy to injure the federally-protected right of voters not to have their ballots diluted through the casting of unlawful votes, it was shown that there was one "key man" who, by various illegal means, directed the acquisition of absentee ballots from several different voters. A second defendant had participated in most of the transactions, -and some of the others accused appeared in more than one instance. The court held -that such activity constituted a mutually beneficial and successful step toward a common goal-the stealing of the election-and hence it was proper to treat it all as one conspiracy. More sound, it would seem, is a holding that thieves who disposed of their loot to a single receiver did not by that fact become confederates. 11 And -the Supreme Court held that neither Congress nor the Court intended to -authorize the government to string together, for common trial, eight or more separate and distinct crimes, "conspiracies related in kind though they might be, where the only nexus among them lies in the fact that one man participated in all.""12 Another case"13 was tried under an indictment containing ninety counts, each charging a separate crime in contravention of the law against compulsory prostitution of women. During the trial twenty- eight counts were withdrawn; the jury rendered a verdict of guilty on each of the sixty-two remaining. The indictment charged three distinct types of crime, each a violation of a separate subdivision of what was -then section 2460 of the New York Penal Law: (a) placing a female in a house of prostitution; (b) receiving money for placing a female in a house of prostitution; and (c) receiving money from the earnings of women so placed. The evidence showed a combination to control commercialized vice in the city of New York. Prostitutes were obliged to operate through agents of ,the "combine," as it was called. Of the defendants, L was head of the enterprise, P was the treasurer, B was in active command, and W was the leader of the "collectors" and the strong-arm

110. United States v. Morado, 454 F.2d 167, 171 (5th Cir. 1972). 111. United States v. Lekacos, 151 F.2d 170, 173 (2d Cir. 1945). 112. Kotteakos v. United States, 328 U.S. 750, 773 (1946). 113. People v. Luciano, 277 N.Y. 348, 14 N.E.2d 433 (1938). THE HASTINGS LAW JOURNAL [Vol. 26 man. Although the indictment did not even charge a conspiracy, the court held that the evidence clearly established a conspiracy and that each participant was guilty of the substantive crimes committed by the others in carrying out this common objective. Conviction on all sixty- two counts was affirmed. Of special interest is a decision' 14 in which eighty-eight persons were indicted for conspiracy to import, sell and possess narcotics. The purported combination embraced a great number of persons whose alleged object was to smuggle narcotics into the Port of New York and distribute them to addicts both in New York City and in Texas and Louisiana. The alleged plan included (a) smugglers, (b) middlemen and (c) at least two groups of retailers. There was no evidence of communication between the smugglers and the retailers, or between the two groups of retailers. But it was clear that the smugglers knew that the unlawful business would not stop with the middlemen, and that the retailers knew that it had not begun with the middlemen. Thus the court ruled that all were embarked upon a venture, in all parts of which each was a participant, and an abettor in the sense that the success of that part with which he was immediately5 concerned, was dependent upon the success of the whole." Hence it was proper to treat the entire operation as one conspiracy rather than three or more conspiracies."' A large, complex organization engaged in unlawful activity does not fit neatly into the common law of conspiracy in all of its applications, although it is definitely related thereto. There is a broad common goal, but those working toward that end often operate on different "levels," so -to speak. 117 This suggests the possibility that the specific objectives of those engaged in such a conspiracy may sometimes differ from one "level" to another. As asserted in one case, while a defendant's "participation as a salesman admittedly did not involve him in all aspects of

114. United States v. Bruno, 105 F.2d 921 (2d Cir. 1939). 115. Id. at 922. 116. The conviction of Bruno was reversed because of the trial judge's refusal to instruct that his failure to testify did not create any presumption against him. Bruno v. United States, 308 U.S. 287 (1939). 117. Complex conspiracies have commonly been characterized as either "wheel" type or "chain" type. "There may be one person . .. round whom the rest resolve. The metaphor is of the centre of a circle and the circumference. There may be a conspiracy of another kind, where the metaphor would be rather that of a chain .... " Rex v. Meyrick, 21 Crim. App. 94, 102 (1929). Actually, the modem criminal syndicate is frequently structured like an ordinary business with different echelons of authority and responsibility. November 1974] COCONSPIRATORS

the overall conspiracy [to import and distribute restricted drugs], it was sufficient to tie him to the conspiracy charged." 118 In reference to a small part of another complex syndicate, the Supreme Court pointed out that while each salesman aided in selling only his part, he knew that he was aiding in a larger plan and thus became a party to it."1 9 And another court dealing with a comparable situation spoke of partici- ' 2 0 pants "some in greater and some in less degree.' This point is emphasized in a recent case' 2' concerning a statewide scheme to stage fraudulent automobile accidents for the purpose of creating false personal injury claims to be presented to insurance com- panies. The participants even coined their own terminology: there were "recruiters" who enlisted the "hitters," the "drivers," the "riders," and the "target" vehicles. The "hitter" would purposely drive his car against the "target" vehicle, containing the "driver" and -the "riders." The planners determined that pregnant women would make desirable "riders" as they could claim pregnancy-related injuries that would be hard to disprove. The scheme also included doctors and lawyers. A doctor would facilitate spurious claims by creating a medical history for treatment of a nonexistent injury; a lawyer would present a claim to the appropriate insurance company. In the course of asserting and negotiating the fraudulent claims for settlement, use was 'made of the United States mails, and -thematter thus became a federal case. A thirteen-count indictment was rendered against twenty-one defendants, charging them all with conspiracy to violate the mail-fraud statute and alleging twelve substantive violations of that statute. Each count for a substantive offense named some, but not all, of those named in the conspiracy count, so that -the list of defendants differed from

118. United States v. Rizzo, 491 F.2d 215, 218 (2d Cir. 1974). 119. Four persons had been convicted of conspiring to sell whiskey at prices above the ceiling, in violation of the Emergency Price Control Act. The evidence did not show that the four had met together or had acted together in the usual way. In uphold- ing the conviction, the Court said: "By their separate agreements, if such they were, they became parties to the larger common plan, joined together by their knowledge of its essential features and broad scope, though not of its exact limits, and by their common single goal.

All by reason of their knowledge of the plan's general scope, if not its exact limits, sought a common end, to aid in disposing of the whiskey. True, each salesman aided in selling only his part. But he knew the lot to be sold was larger and thus that he was aiding in a larger plan. He thus became a party to it . . . ." Blumenthal v. United States, 332 U.S. 539, 558-59 (1947). 120. Wilson v. United States, 190 F. 427, 436 (2d Cir. 1911). 121. United States v. Perex, 489 F.2d 51 (5th Cir. 1973). THE HASTINGS LAW JOURNAL [Vol. 26

count to count. After five substantive counts had been dismissed for insufficient evidence, some defendants had entered pleas of guilty, and the trial judge had entered judgment of acquittal as to two persons, the case involving the remaining thirteen defendants was submittted to the jury, which -returned a verdict of not guilty as to one, and guilty as to twelve. All those found guilty were convicted on the conspiracy count; five were convicted on that count only, while the other seven 122 were also found guilty of from one to five substantive counts. Defendants claimed a fatal variance between the indictment, which charged one conspiracy, and the proof, which they asserted established several distinct conspiracies. This was rejected by the court, which said, "It was one big, and hopefully profitable enterprise, which looked toward successful frequent but none-the-less discrete repeti- tions, and in which each participant was neither innocent nor unre- warded.' ' 23 In any event, the development of new problems in conspiracy law in connection with the modern form of a complex and sprawling network of crime has not escaped attention. 124 One suggested response

122. Id. at 89 (App. V). The jurors may have decided that the specific objectives of the various members were not the same on all "levels" of this complex conspiracy. It seems obvious that they felt one conviction would be enough for some. Because of the unrestricted power of the jury to return a verdict of not guilty in a criminal case, a verdict of guilty on one count is not rejected because it seems inconsistent with a verdict of not guilty on a separate count. "[T]his court has consistently held in accordance with Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L. Ed. 356 (1932), that 'inconsistency of a verdict on separate counts of an indictment does not entitle a convicted defendant to reversal of a judgment of conviction.'" United States v. Wetzel, 488 F.2d 153, 155 (8th Cir. 1973), quoting Coil v. United States, 343 F.2d 573, 576 (8th Cir.), cert. denied, 382 U.S. 821 (1965). As explained by Judge Hand, the acquittal on the other count is interpreted as "no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925). 123. United States v. Perez, 489 F.2d 51, 64 (5th Cir. 1973). 124. "The art of distinguishing between evidence which tends to show a single overall conspiracy, and that which tends to show several separate conspiracies, is a frus- trating and challenging one, but one that courts must master if the criminal process is to resist en masse prosecutions that permit unreviewable, unmanageable transference of guilt between defendants." United States v. Morado, 454 F.2d 167, 170 (5th Cir. 1972). "When many conspire, they invite mass trial by their conduct. . . . Wholly different is it with those who join together with only a few, though many others may be doing the same and though some of them may line up with more than one group. Criminal they may be, but it is not the criminality of mass conspiracy." Kotteakos v. United States, 328 U.S. 750, 773 (1946). November 1974] -COCONSPIRATORS

is the creation of a new crime, providing -a very severe penalty for the leaders of large criminal syndicates. 25 Perhaps size, as such, may de- mand attention, at least in certain applications. 26 The possible multiplicity of criminal objectives in such an organization also requires special consideration;' 27 without doubt there may be situations in which those operating at a low "lever' must be dealt with in terms of the objectives they are able to appreciate, rather than the goals of those higher 1 28 up. The difficulties introduced by the large-scale criminal syndicate, however, must not be permitted to distort the law of simple conspiracy. The simplest conspiracy of all, and perhaps the most common, is the combination of two persons to commit one substantive offense. The mere inclusion of more than one offense in the plan, or the addition of more than two participants, should not in itself make the conspiracy complex.' 29 And there is no basis for -an assumption that most group

125. 1971 Hearings,supra note 4, at 225. 126. "In enacting the Organized Crime Control Act of 1970, of which section 1955 is a part, Congress directed its attention to large-scale, syndicated gambling because it was thought that 'organized crime derives a major portion of its power through money obtained from such illegal endeavors as [inter alia] syndicated gambling . . . .' 1970 U.S. Code Cong. & Admin. News p. 1073. As its jurisdictional basis for making organized gambling prosecutable in a federal court, Congress relied on its power to regulate interstate commerce. Section 1955 was drafted to prohibit only those gambling busi- nesses that reach a size and scope certain to have significant interstate impact .... The section contains a jurisdictional statement . . . that defines 'illegal gambling business' as a business that involves five or more persons and that either is in continuous operation for more than thirty days or has a gross revenue of $2,000 in a single day. 18 U.S.C. § 1955(b)(1). Through this jurisdictional statement, Congress sought to confine federal attention to large-scale organized gambling, which clearly has direct ef- fects on interstate commerce." United States v. Pacheco, 489 F.2d 554, 558-59 (5th Cir. 1974) (citation omitted). 127. "But this multiplicity of criminal objectives affords a poor referent for testing the culpability of each individual who is in any manner involved in the operation." MODEL PENAL CODE §§ 5.03(1)-(3), Comment at 121 (Tent. Draft No. 10, 1960). 128. "Through the conspiracy dragnet, all participants in gang operations, the cats- paw and his principal, those who contribute from afar as well as the immediate actors, can be punished, often before the evil design has fully matured into the criminal act. To accomplish this result however, the jury must be permitted to draw broad inferences of the agreement and intent from evidence of an amorphous context of acts, circumstances and conduct. The danger necessarily follows that the defendant 'might be found in the net of a conspiracy by reason of the relation of [his] acts to the acts of others, the significance of which [he] may not have appreciated."' Note, The Conspiracy Di- lemma: Prosecution of Group Crime or Protection of Individual Defendants, 62 HARV. L. REV. 276, 284 (1948). 129. "Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one." THE HASTINGS LAW JOURNAL [Vol. 26 crimes are perpetrated by large criminal organizations. 3 ' If A said to D, "I wish you would murder X," whereupon D hunted up X and killed him, A would be guilty of murder.' 3' If A said to D, "Let us murder X," to which D agreed, and D promptly hunted up X and killed him, the only reasonable conclusion is that A is guilty of murder. One of the surest ways to encourage another to commit a crime is to enter into a conspiracy with him for the accom- plishment of that very result.132 In other words, the "application of traditional complicity rules alone will ordinarily be sufficient to hold each member of a small-scale conspiracy liable for acts committed in its furtherance."' 33 And in a situation free from complications, Judge Hand dealt with complicity and conspiracy as "in substance the same thing."' 34 Thus, at least so far as the ordinary simple conspiracy is concerned, the question posed at the outset must be answered in the affirmative: the substantive acts of one conspirator, in furtherance of the conspiracy, must be imputed to his coconspirators insofar as they were members of the conspiracy at the time the acts were committed. Pink- erton,"3'5 which dealt with just such a situation, is unquestionably sound. And the reason has never been stated better than in the opinion by Mr. Justice Douglas in that case: And so long as the partnership in crime continues, the partners act for each other in carrying it forward . . . .A scheme to use the mails to defraud, which is joined in by more than one person, is Braverman v.United States, 317 U.S. 49, 53 (1942). ,Inthis case it appears that the conspiracy resulted in seven different substantive offenses, but defendants were not charged with those crimes; rather, they were charged with seven different conspiracies. This resulted in reversal of the conviction. 130. "It is an oversimplification to regard most group crimes as resulting from the machinations of large criminal organizations; in many cases the perpetrator receives his aid or counsel from at most a few individuals." Developments in the Law: Criminal Conspiracy, 72 HARv. L. REV. 920, 999 (1959). 131. He who "procures a crime to be done, if it is done, is guilty of the crime . United States v. Gooding, 25 U.S. (12 Wheat.) 460, 469 (1827) (Story, J.). 132. For a reference to "the encouraging effect that knowledge of his allegiance has upon the other conspirators," see MODEL PENAL CODE § 5.03(7), Comment at 154 (Tent. Draft No. 10, 1960). "If the agreement was to aid another to commit a crime or if it otherwise en- couraged its commission, it would establish complicity in the commission of the substantive offense." Wechsler, Jones & Kom, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute, 61 COLUM. L. REv. 957, 958 (1961) (emphasis added). 133. Developments in the Law: Criminal Conspiracy, 72 HARv. L. REv. 920, 999 (1959). 134. See note 21 supra. 135. Pinkerton v. United States, 328 U.S. 640 (1946). November 1974] COCONSPIRATORS 359

a conspiracy. Yet all members are responsible, though only one did the mailing. The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for that purpose. The act was done in execution of the enterprise. The rule 'which holds responsible one who counsels, procures, or commands6 another to commit a crime is founded on the same principle.13

136. Id. at 646-47 (citations omitted).

Prior Inconsistent Statements: Presently Inconsistent Doctrine

By MARK REUTLINGER*

THE common law has come a long way since Sir Walter Raleigh was convicted of treason on the basis of accusations contained in unproduced letters and the hearsay declarations of unproduced witnesses. However, despite the painstaking development and innumer- able formulations and reformulations of the hearsay rule over the past several centuries, there are areas of that body of law which are as yet unsettled and the subject of heated controversy. One such area is that of prior inconsistent statements of witnesses, the controversy over which has continued over the years and has surfaced once again with promulgation of the new Federal Rules of Evidence.t Legal theories, like social and cultural philosophies, often follow marked trends and patterns. A few years ago exclusionary rules were on the ascendancy, especially in the area of criminal law, while today it is increased admissibility which is in vogue. Both had their advocates throughout common law history,' and will probably always find support. It is a reflection of this current trend that the traditional rules governing substantive use of prior inconsistent statements, once un- questioningly accepted, have since been roundly criticized by authorities from Wigmore to the Supreme Court. The purpose of this at-

* Assistant Professor of Law, University of British Columbia; A.B., 1965, University of California, Berkeley; J.D., 1968, University of California, Berkeley. Member, California Bar. t As of the time that this article went to press, the proposed rules were still pending in the Senate Committee on the Judiciary, having been introduced in the Senate on February 7, 1974 after passing in the House of Representatives the previous day by a 377-13 vote. 1. Compare People v. Mayen, 188 Cal. 237, 205 P. 435 (1922), with People v. Cahan, 44 Cal. 2d 434, 282 P.2d 905 (1955). Compare T. STARKmE, LAW OF EVIDENCE 19-20 (10th ed. 1876), with 3A J. WIGMORE, A TIREiSE ON THE SYSTEM OF EVIDENCE IN TRLs AT COMMON LAW § 1018 (Chadboum rev. 1970) [hereinafter cited as WIG- MoR-; citations to 5 & 6 WiGMoRE refer to 3d ed. 1940].

[3613 THE HASTINGS LAW JOURNAL [Vol. 26 ticle is to attempt to redress the balance just slightly, by setting out some of the counterarguments which lie behind the traditional substantive exclusion of prior inconsistent statements. An attempt will be made to emphasize practical, rather than merely theoretical, considerations. "Orthodox" versus "Unorthodox" Rules Prior inconsistent statements are easy to understand in concept, once one clearly comprehends the hearsay rule itself. The hearsay rule excludes evidence consisting of out-of-court statements (that is, statements made other than by a witness while testifying at the present hearing) when offered to prove the truth of the matter stated therein.2 The rationale for the hearsay rule is threefold: (1) the statement is not made under oath; (2) the declarant is not subject to cross-examination by the party against whom the statement is being offered; and (3) the statement is not made under circumstances enabling the trier of fact to observe the demeanor of the witness when the statement was made.3 It is apparent that a prior statement made by a witness, although he is presently testifying on the stand, suffers from all three of these deficiencies, if (as is usual) such a statement was made at a time when the witness was not under oath, was not subject to cross-examination by the opposing party, and could not have been observed by the trier of fact.4 For these reasons, even prior out-of-court statements by present witnesses have traditionally been excluded when offered to prove the truth of the matters stated therein. They are, however (and under the "orthodox" rule always have been), admissible if they are inconsistent with, and offered only to impeach, present testimony by the wit-

2. For purposes of this article, it is unnecessary to delve into the controversy over what constitutes a "statement." See, e.g., CAL. EVID. CODE § 1200, Comment- Senate Comm. on Judiciary (West 1966); C. MCCORMICK, HANDBOOK OF TIM LAW OF EVIDENCE § 250 (2d ed. 1972) [hereinafter cited as MCCORMICK]. 3. See, e.g., People v. Johnson, 68 Cal. 2d 646, 441 P.2d 111, 68 Cal. Rptr. 599 (1968), cert. denied, 393 U.S. 1051 (1969); People v. Bob, 29 Cal. 2d 321, 325, 175 P.2d 12, 15 (1946); MCCORMICK, supra note 2, § 245; 5 WIGMORE, supra note 1, § 1362. This rationale explains why a statement is hearsay only if it is offered to prove the truth of the matter stated. If it is offered only as evidence that the statement was made, the trier of fact need determine only whether the witness on the stand is truthfully and accurately reporting the out-of-court statement, and the witness's testimony is made under oath, subject to cross-examination, before the present trier of fact. 4. As will be discussed below, even when some of these conditions appear to be fulfilled, there are basic flaws in the use of prior inconsistent statements which cannot be overcome so long as the statement was made outside of the hearing and observation of the present trier of fact. See notes 41-58 & accompanying text infra. November 19741 PRIOR INCONSISTENT STATEMENTS ness. Although there are no means of testing the truth value of the prior statement, once it is proven simply that the prior inconsistent statement was made, this alone reflects on the credibility of the con- flicting testimony from the witness stand. Thus if the witness says today that the traffic light was red when the defendant crossed the intersection, but said yesterday that the light was green, the jury need not accept the "green light" version as true in order to view the contra- diction as grounds to doubt the present "red light' version, and perhaps to discount the witness's veracity or reliability entirely. All of the above may sound somewhat esoteric and ritualistic, and many distinguished authorities in the field of evidence have come to doubt the efficacy of the distinction between admitting the prior inconsistent statement for its impeachment value only, and admitting it for its truth value as well.6 If statement A is the opposite of statement B, it is asserted, does it really matter whether we believe A or disbelieve B?7 Are we merely putting jurors through mental gymnastics, asking them to disbelieve one statement while attempting not to accept as true its converse? The answers are not nearly as clear as the questions. Of the three reasons for excluding prior statements under the hearsay rule, probably the weakest in a modem context is that of the presence or absence of an oath. Whatever importance was historically (or is presently) attached to the oath as a means of eliciting the truth, either because of its moral persuasiveness or because of the possibil-

5. See, e.g., People v. Ballard, 218 Cal. App. 2d 295, 309, 32 Cal. Rptr. 233, 242 (1963) (pre-Code decision). Wigmore first referred to this "impeachment only" rule as the "orthodox" rule, and so it has become known. Interestingly, the first edition of Wigmore's treatise approved the orthodox rule, but subsequent editions have disapproved it and have formed the basis of most of the attacks on that rule. 3A WIGMORF, supra note 1, § 1018. Since today there are relatively few advocates of the traditional restriction on prior inconsistent statements, it is perhaps a misnomer to refer to this as the "orthodox" rule -a misnomer this article will perpetuate in the interest of consistency with accepted terminology. 6. E.g., McCoRMcK, supra note 2, § 251; 3A WIGMoRE, supra note 1, § 1018; Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 HAnv. L. REv. 177, 192-96 (1948) [hereinafter cited as Morgan]. See also California v. Green, 399 U.S. 149 (1970); CAL. EviD. CODE § 1235 (West 1966); N.J. RuLEs OF Evm., Rule 63(1) (1974). 7. See, e.g., United States ex rel. Ng Kee Wong v. Corsi, 65 F.2d 564, 565 (2d Cir. 1933); Morgan, supra note 6, at 193. This assumes that the two statements are indeed opposite as well as inconsistent, and that if A is false then B must be true. Of course, this need not necessarily be so-A and B may both be false. "The light was green" is inconsistent with "the light was red," but both are untrue if the light was in fact yellow. THE HASTINGS LAW JOURNAL [Vol. 26

ity of conviction for perjury, over time the oath has taken on less importance.8 Some would also dismiss demeanor as a desirable but unnecessary benefit in reaching the truth, 9 a position which will be discussed further below. 10 There is no doubt, however, that the principal thrust of the hearsay rule, and the factor which clearly separates hearsay from other forms of evidence, is the opportunity to cross-examine the declarant, to put his assertions to the test of "the greatest legal engine ever invented for the discovery of truth." " While virtually no one within the legal community disputes the value and necessity of cross-examination in reaching the truth of a witness's testimony, it is precisely on this point-the opportunity to cross-examine-that the critics and commentators are divided with respect to prior inconsistent statements. The controversy is not so much over the necessity for an opportunity to cross-examine, as it is over the practical effectiveness of what cross-examination there is. In short, what is the worth of cross- examination which is not (a) contemporaneous with the statement whose truth value is in question, and/or (b) conducted before the same trier of fact who must determine that truth value? Here the battle is joined. One must distinguish for purposes of subsequent discussion the various circumstances under which a prior statement might have been made by the witness. It might have been made under totally nonjudicial circumstances, as at the scene of the crime, transaction, or incident in issue. It might, on the other hand, have been made in a judicial setting: at a preliminary hearing, at a grand jury proceeding, or from the witness stand at a previous trial in which the present parties were or were not involved. The context of the statement is crucial, because both the opportunity for and the practical efficacy of cross-examination vary greatly depending upon the surrounding circumstances. For this reason, some authorities have taken a middle ground between the "orthodox" and the "unorthodox" formulations of the rule, permitting substantive use of prior inconsistent statements made in some circumstances but rejecting those made in others. As will be seen, the proposed Federal Rules adopt this latter approach.

8. MCCORMICK, supra note 2, § 251, at 601; 6 WIGMORE, supra note 1, §§ 1827, 1831. 9. 5 WIGMORE, supra note 1, § 1396. 10. See notes 39-40, 47-53 & accompanying text infra. 11. 5 WIGMORE, supra note 1, § 1367, at 29. See Flintkote Co. v. Lysfjord, 246 F.2d 368, 382-83 (9th Cir.), cert. denied, 355 U.S. 835 (1957) ("The best method yet devised for a determination of the truth of a fact. ... ); R. SCHWEITZER, CYCLOPEDIA OF TRIAL PRACTICE § 231, at 606 (2d ed. 1970) ("The highest and the most indispensable [test] known to the law for the discovery of truth."). November 19741 PRIOR INCONSISTENT STATEMENTS

The primary argument against the orthodox rule is expresed by Wigmore: because the witness who made the statement is, by definition, available at the present hearing for cross-examination with respect to both his present and former statements, "the whole purpose of the hearsay rule has been already satisfied."' 2 The premise of this argument is found in a preceding sentence in Wigmore's treatise. After explaining that the only ground for rejecting the truth value of a prior inconsistent statement would be the hearsay rule prohibition, the treatise continues: "[b]ut the theory of the hearsay rule is that an extrajudicial statement is rejected because it was made out of court by an absent person not subject to cross-examination .... 11 Dean Wigmore notwithstanding, the hearsay rule does not distinguish between the presence or absence of the declarant in court.' 4 In fact, exclusions under the rule are replete with instances of statements made by persons readily available to testify at the present hearing. For example, a letter or other document containing factual assertions sought to be proved at trial cannot be admitted for the truth of the matters stated therein unless a specific exception to the hearsay rule (such as that for entries in business records)' 5 has been satisfied. It is wholly immaterial whether the person who made the entry is present in the courtroom or willing to testify, except with respect to laying a foundation for the admission of the document under a hearsay exception.' 6 Moreover, many exceptions to the hearsay rule contain a fundamental prerequisite that the declarant be unable to testify at the hearing.' 7 This requirement is included because these exceptions are

12. McCoRMIcK, supra note 2, § 251, at 602, quoting 3A WiGMoRE, supra note 1, § 1018, at 996; see California v. Green, 399 U.S. 149, 159-60 (1970); CAL. EvID. CODE § 1235, Comment-Law Revision Comm'n (West 1966); Morgan, supra note 6. 13. 3A WIGMoRE, supra note 1, § 1018, at 996. 14. See, e.g., CAL. EVID. CODE § 1200 (West 1966); McCoRmcK, supra note 2, § 246, at 584. 15. See, e.g., CAL.. EvD. CoDE § 1271 (West 1966). 16. See generally id. § 1271; UNn'opm RurLns OF EviDENCB rule 63(13); McCoR- MICK, supra note 2, §§ 304-14. Thus, if the author of the document is present in court but his testimony fails to satisfy the requirements of one of the exceptions to the hearsay rule (for example, he cannot testify as to when or how a particular entry was made) the writing will remain inadmissible hearsay. See also CAL. EVD. CODE § 1203(d) (West 1966) (hearsay declarant may be examined concerning admissible hearsay evidence, but declarant's unavailability does not affect admissibility if not otherwise required). 17. An example is the exception for former testimony. See, e.g., CAL. Evnm. CODE §§ 1291-92 (West 1966). See also id. §§ 1230, 1251, 1310-11, 1323. See generally McCoRMICK, supra note 2, § 253; 5 WIGMORE, supra note 1, §§ 1421, 1431, 1456, 1481, 1506, 1521, 1565. THE HASTINGS LAW JOURNAL [Vol. 26 based on the dual rationale of necessity and some circumstantial guarantee of trustworthiness,' and the former requirement is generally satisfied by the declarant's unavailability. Thus present availability of a witness to testify does not "satisfy the whole purpose of the hearsay rule"; if anything, it generally reinforces the rationale for excluding any but his present, in-court testimony. If a witness is on the stand and testifying, use of his prior statements cannot be considered necessary (although for the examiner they may understandably be desirable). Just how trustworthy prior inconsistent statements are will be considered in the remainder of this article. While it is of course true that an available witness can be cross- examined at the present hearing with respect to a prior statement, any such questioning would not be contemporaneous with the making of that prior remark. By the very fact of excluding generally all out-of- court statements (whether consistent or inconsistent, and whether the declarant is available or unavailable), the hearsay rule implies the insufficiency of cross-examination at another time, and before another trier of fact. Most critics of the orthodox rule make their assertions in the context of prior inconsistent statements only (or prior consistent statements used for rehabilitation following an assertion of recent fab- rication),' 9 rather than with respect to all prior statements. And yet,

The requirement of unavailability has been abandoned with respect to certain of the hearsay exceptions through the years; however, even the proposed Federal Rules re- tain it for several exceptions. PROPOSED FED. R. Evm. rule 804(b), H.R. 5463, 93d Cong., 1st Sess. § 804(b) (1973). But ef. Martin, The Former-Testimony Exception in the Proposed Federal Rules of Evidence, 57 IowA L. REv. 547, 596 (1972) ("To re- tain the unavailability requirement. . . is to perpetuate an anachronism .... "). 18. 5 WIGMORE, supra note 1, §§ 1420-22. Wigmore credits Starkie with first stating this philosophy of the hearsay exceptions in his 1824 treatise. Compare this philosophy with the Federal Rules of Evidence as originally proposed by the Supreme Court's Advisory Committee, which attempted to open the door to judicial creativity in the area of hearsay exceptions, based generally on the "necessity-trustworthiness" principle. PROPOSED FED. R. EvID. rule 8-03 to -04, 46 F.R.D. 327-28 (1969). See also CAL. EvID. CODE § 1200(b) (West 1966): "Except as provided by law, hearsay evidence is inadmissible." The comments to this section of the California law indicate that exceptions "may be found either in other statutes or decisional law," and cite People v. Spriggs, 60 Cal. 2d 868, 874, 389 P.2d 377, 381, 36 Cal. Rptr. 841, 845 (1964), a case in which Justice Traynor utilized the trustworthiness rationale to create the "declaration against penal interest" exception now codified in CAL. EvIn. CODE § 1230 (West 1966). 19. Prior consistent statements generally present the same problems in theory as prior inconsistent statements, but to the extent that they are identical to in-court testimony, there should be no practical difficulty in allowing substantive use. Clearly, the trier of fact is entitled to accept as true the present testimony, rendering any inquiry as to whether it also made substantive use of the prior consistent statement of academic interest only. See People v. Washington, 71 Cal. 2d 1061, 1077-78, 458 P.2d 479, 488, 80 Cal. Rptr. 567, 576 (1969). For a recent application of the California statute November 19741 PRIOR INCONSISTENT STATEMENTS if cross-examination now for utterances made then is sufficient to overcome objections with respect to inconsistent statements, why is it not equally sufficient with respect to all statements made out of court by a declarant available for present cross-examination? 20 In any event, the controversy is generally confined to prior inconsistent statements, and it is this category which will be examined herein with respect to the efficacy of cross-examination which is not both contemporaneous with the declaration and before the present trier of fact. Another argument against the orthodox rule is a very practical one: no manner of limiting instruction can assure that a jury will com- prehend or follow an admonition to use a prior statement for one purpose but not for another. 21 This contention has greatest impact when put in the context of a prior statement which is the logical converse of present testimony-that is, if one is false the other must, a fortiori, be true. How can a jury be expected to disbelieve the second without accepting as true the first? As pointed out earlier,22 however, this is only one extreme example of possible inconsistency; more often statements may be inconsistent, and thus cannot both be true, yet logically may both be false. One answer to this argument is that where a judge is the sole trier of fact he is presumably capable of understanding and applying the distinction. Furthermore, in any case in which the prior statement constitutes the only substantial evidence put forth by the party with the burden of proof, a directed verdict (or reversal on appeal) effectively takes the matter out of the jury's hands. But there is no denying that it is an inherent failing of the jury system that limiting instructions, like admonitions to disregard improper testimony, are not an absolute safe- guard against the intrusion of human frailties and limitations into a allowing use of prior consistent statements for all purposes, see People v. Cannady, 8 Cal. 3d 379, 385-88, 503 P.2d 585, 589-91, 105 Cal. Rptr. 129, 133-35 (1972). Another "special" category of prior statements is that of prior identification, involving various considerations beyond the scope of this article. See CAL. Evm. CODE § 1238 (West 1966). 20. See State v. Saporen, 205 Minn. 358, 361-62, 285 N.W. 898, 901 (1939). Mc- Cormick's treatise, in its present (Cleary) edition, at least recognizes this inconsistency, and attempts to reconcile it by explaining that there may be less likelihood of abuse in the case of inconsistent statements. McCoMIK, supra note 2, § 251, at 603-04. Professor McCormick himself, in his earlier works, did not appear to draw this distinction. See C. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE § 39, at 82 (1st ed. 1954); McCormick, The Turncoat Witness: Previous Statements as Substantive Evidence, 25 Tnx. L. REv. 573, 588 (1947) [hereinafter cited as The Turncoat Witness]. 21. The Turncoat Witness, supra note 20, at 580-81; see CAL. EVID. CODE § 1236, Comment-Law Revision Comm'n (West 1966). 22. See note 7 supra. THE HASTINGS LAW JOURNAL [Vol. 26 verdict. Nevertheless, the fact that we cannot "unring the bell" after an improper statement by counsel or a witness is not a sufficient reason to eliminate motions to strike and admonitions to the jury, and it is like- wise questionable whether the difficulty in attempting to apply evidence against some defendants but not against others, or to consider a prior statement for impeachment but not for substantive purposes, should result in such evidence either being admitted for all purposes or being excluded entirely.23 The jury frailty rationale is simply too broad. A subsidiary contention often put forward in opposition to the orthodox rule is that the prior statement, because of its greater relative proximity in time to the event in question, is inherently more reliable than the testimony on the stand: not only was the witness's recollection more accurate at a time closer to the event in question, but there had been less opportunity at that time for improper influence to have en- couraged the witness to falsify his story.24 There are some obvious weaknesses in this position. To begin with, the prior statement might well have been made months or years after the event in question, yet only a few days prior to the in-court testimony. Even assuming significantly greater proximity of the prior statement to the event, is that statement indeed more reliable? No doubt most memories fade over time (although we have all "forgot- ten" events only to remember them clearly at a later date). Nonethe- less, with respect to the possibility that the witness was corrupted after the first statement was made, it is equally likely that a witness who lied originally, for whatever reason, has since been convinced to tell the truth. For example, an attack of conscience or a guarantee of protection or immunity from prosecution could be motivating factors. Per- haps more likely, the witness may be influenced by the awesome difference between an informal statement of no immediate consequence to anyone (and carrying no threat of conviction for perjury or other sanc- tion) and formal testimony in court under penalty of perjury, with the

23. See, e.g., CAL. Evm. CODE § 355 (West 1966): "When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." Of course, where the possibility of the jury being unable to follow a limiting instruction threatens a constitutional right of the accused, this contingency must be eliminated by severance or other means which preserve the limitation, rather than forego it. See, e.g., Bruton v. United States, 391 U.S. 123 (1968); People v. Aranda, 63 Cal. 2d 518, 407 P.2d 265, 47 Cal. Rptr. 353 (1965). 24. See, e.g., People v. Gould, 54 Cal. 2d 621, 626, 354 P.2d 865, 867, 7 Cal. Rptr. 273, 275 (1960); The Turncoat Witness, supra note 20, at 577-78. November 19741 PRIOR INCONSISTENT STATEMENTS life or liberty of a party now in the balance.2, Moreover, even if we accept the premise that earlier statements are more reliable than later ones, this is nothing more than an abstract generalization, not a basis for decision. Merely to say that, in general, one class of statement tends to be more reliable than another is really to say little or nothing about the actual reliability of any particular two statements before the court. Relative proximity to the event, in and of itself, provides no intrinsic guarantee whatsoever of truthfulness (as does, for example, the fact that a statement is against one's interest). Further, the question of fading memory, surely the element most likely to render an earlier statement more reliable, reduces only the possibility of honest mistake based on poor recollection, and not at all that of deliberate falsehood or mistake based on other factors, such as faulty perception. For those defects, the only cure is effective cross- examination.2 Thus it seems that we must return to adequacy of cross-examination as the best determinant of whether prior statements should or should not be given substantive effect. As noted earlier, prior inconsistent statements can occur in many contexts, some of which offer the opportunity for cross-examination at the time of the declaration (as at a former trial or preliminary hearing). This latter circumstance is a somewhat special case and will be discussed separately, as it raises questions that are different from those cre- ated by the prior statement made either outside of the judicial context or under circumstances clearly offering no opportunity for cross-examination.

25. Cf. California v. Green, 399 U.S. 149, 199 (1970) (Brennan, J., dissenting); People v. Johnson, 68 Cal. 2d 646, 654, 441 P.2d 111, 117, 68 Cal. Rptr. 599, 605 (1968). 26. For all of these reasons, the only type of statement which the hearsay rule generally recognizes as more reliable than present testimony, based primarily on proximity to the event, is a spontaneous utterance, one made so close to an "exciting" event (or physical or mental feeling) to preclude, at least in theory, an opportunity for reflection or conscious prevarication. See, e.g., Showalter v. Western Pac. R.R., 16 Cal. 2d 460, 465-70, 106 P.2d 895, 898-900 (1940); CAL. Evm. CODE §§ 1240, 1250 (West 1966); 6 WIGMORE, supra note 1, § 1747. See also Pope v. United States, 296 F. Supp. 17, 19-20 (S.D. Cal. 1968). Even spontaneity, however, is a questionable guarantee of truthfulness. See, e.g., Stewart, Perception,Memory and Hearsay: A Criticism of Pres- ent Law and the Proposed Federal Rules of Evidence, 1970 UTAH L. REv. 1, 27-29. Faulty perception, for example, will occur regardless of how "spontaneous" the utterance based on that perception. The proposed Federal Rules' extension of this category to in- clude all spontaneous observations is even more debatable. See PROPOSED FED. R. Evmn. rule 803(1), H.R. 5463, 93d Cong., Ist Sess. § 803(1) (1973). Of course, if the prior statement falls within this or any other hearsay exception lot requiring unavailability, the problems discussed in this article become moot. THE HASTINGS LAW JOURNAL [Vol. 26

Prior Statement, Present Cross-Examination Many explanations have been advanced to explain why cross-examination, to be effective, cannot take place months or years following the challenged statement. First, cross-examination, by its very nature, depends for its success in exposing falsehood upon immediacy; in the words of the leading case expounding the orthodox rule, "[flits strokes fall while the iron is hot."27 Generally this means that a witness must not be given time to crystallize and rationalize a false story. However, by definition a prior inconsistent statement implies that the witness has already recanted before taking the stand,2" making cross-examination unnecessary to achieve this result. It has been argued that this should make the cross-examiner's task easier,2 9 but just the reverse may in fact be true: his task may be made too easy, and thus merely raise an even more difficult obstacle to effective questioning. This circumstance is illustrated in the case of Ruhala v. Roby.Y Ruhala concerned an automobile accident in which a woman was killed and the administrator of her estate sued both R, the driver of the car in which the deceased was riding, and B, the driver of the truck which collided with her car. A key issue was who was driving the car at the time of the accident. B had made an out-of-court statement to the effect that since the woman in the car which he hit was on "his side" at the time of the collision, R "had to have been" driving. At trial B changed his story and testified that the decedent had been driving the car. The court upheld the trial judge's refusal to permit the use of B's prior inconsistent statement for the truth of the matter stated; that is, to prove that the deceased woman was driving. The court demonstrated that a competent cross-examiner attack- ing B's statement at the time it was made could easily have pointed out the fallacy of his assumption that R "had to have been" driving, due to the presence of several other logical explanations for the woman's position at the time, and thereby could have forced B to recant his statement in the presence of the jury. "Every cross-examiner tries

27. State v. Saporen, 205 Minn. 358, 362, 285 N.W. 898, 901 (1939). See also People v. Johnson, 68 Cal. 2d 646, 654-57, 441 P.2d 111, 117-19, 68 Cal. Rptr. 599, 605-07 (1968). 28. This assumes that the present testimony is not a mere lack of present recollection. There has been much controversy over whether present forgetfulness is inconsistent with prior knowledge. See, e.g., People v. Sam, 71 Cal. 2d 194, 208-10, 454 P.2d 700, 708-09, 77 Cal. Rptr. 804, 812-13 (1969); People v. Petersen, 23 Cal. App. 3d 883, 891-92, 100 Cal. Rptr. 590, 594-95 (1972). 29. E.g., The Turncoat Witness, supra note 20, at 576-77. 30. 379 Mich. 102, 150 N.W.2d 146 (1967). November 19741 PRIOR INCONSISTENT STATEME NTS November 1974] PRIOR INCONSISTENT STATEMENTS to bring the witness to the point where he changes his story-literally eats his words-in the presence of the jury. .. . Cross-examination pre-supposes a witness who affirms a thing being examined by a lawyer who would have him deny it, or a witness who denies a thing being examined by a lawyer who would have him affirm it. Cross-examination is in its essence an adver- sary proceeding. The extent to which the cross-examiner is able to shake the witness, or induce him to equivocate is the very measure of the cross-examiner's success.8 2 The cross-examiner at a later trial, on the other hand, faced with a witness who made the statement previously and has already recanted before trial, is denied this means of laying to rest forever the previous statement of the witness: No matter how deadly the thrust of the cross-examiner, the ghost of the prior statement stands. His questions will always sound like attempts to permit the witness to explain why he changed his story 'before coming to court, with the jury being left to infer that he might have 'been induced to change his story in the 3intervening months or years, for some unrevealed and sinister reason. The result of this inability to kill the "ghost' of the prior statement, concluded the court, is that whereas "[i]f the only evidence of an essential fact in a lawsuit were a statement made from the witness stand which the witness himself completely recanted and repudiated before he left the witness stand, no one would seriously urge that a jury question had been made out,"'3 - under the unorthodox rule the jury is permitted to ignore the recantation, believe the prior inconsistent statement, and render a verdict solely thereon. A similar dilemma was faced by the cross-examiner in People v. Green.35 The prosecution witness, who pleaded lack of present recollection, did not retract his prior statements, but simply indicated that they "may have been what he believed at the time, but he now could not remember the events in question."36 The prosecution rested its

31. Id. at 124-25, 150 N.W.2d at 156. 32. Id. 33. Id. at 128, 150 N.W.2d at 158 (emphasis in original). 34. Id. 35. 70 Cal. 2d 654, 451 P.2d 422, 75 Cal. Rptr. 782 (1969), vacated sub nom., California v. Green, 399 U.S. 149 (1970). Green involved the constitutionality of section 1235 of the California Evidence Code, which permits the substantive use of prior inconsistent statements. The California Supreme Court first declared such use unconsti- tutional, primarily on the basis of the confrontation clause. The United States Supreme Court disagreed with the California court's analysis (as will be seen, Congress thereafter disagreed with the Supreme Court, at least as a matter of policy). On remand, of course, the California court accepted the Court's position. People v. Green, 3 Cal. 3d 981, 479 P.2d 988, 92 Cal. Rptr. 494, cert. dismissed, 404 U.S. 801 (1971). 36. 70 Cal. 2d 654, 663 n.6, 451 P.2d 422, 427 n.6, 75 Cal. Rptr. 782, 787 n.6 (1969). THE HASTINGS LAW JOURNAL [Vol. 26 case on the prior statements, and defense counsel had the choice of either letting them stand unchallenged or attempting to discredit them ex post facto. The California court pointed out the inefficacy of an attempt to cross-examine at trial with respect to prior statements hostile to the cross-examiner's case: Defense counsel was thus put in the awkward position of attempting to discredit a witness who had just testified in defendant's favor [by failing to remember crucial facts required for conviction of the defendant]. If cross-examination of a hostile witness is a delicate process, cross-examination of a friendly witness-as to testimony given at a time when he was hostile-is an unusual exercise in di- plomacy and futility.37 For that matter, how does one cross-examine a witness with respect to a statement that the witness will not even admit he made? To use the example put by the court in the Ruhala case, not only is the cross-examiner deprived of the opportunity to force an immediate admission by the witness that his conclusion (R "had to have been driving") was faulty, but he cannot obtain an admission of error at all from a witness who will not even agree that he stated the premise. He cannot elicit an explanation of the inconsistency if the witness will not or cannot concede that it exists. 38 Little has been said thus far about the third element of the hearsay rationale-demeanor. Some commentators discount the value of demeanor evidence, 39 although it is the basis of the unquestioned axiom that an appellate court will always defer to the trier of fact with respect to the credibility of a witness, because only the trier of fact has had the benefit of direct observation of the witness during his testimony.40 More will be said directly about demeanor in the context of cross- examination before a former trier of fact. It is difficult, however, to consider questioning after the fact an adequate substitute for physical observation of the declarant as he makes the statement in question,

37. Id. The issue of whether a lack of memory is inconsistent with prior knowledge was not considered in Green until the hearing on remand. People v. Green, 3 Cal. 3d 981, 988-89, 479 P.2d 988, 1002-03, 92 Cal. Rptr. 494, 498-99 (1971); cf. People v. Sam, 71 Cal. 2d 194, 208-10, 454 P.2d 700, 708-09, 77 Cal. Rptr. 804, 812-13 (1969). 38. Where the witness does not presently recall even the events with which his former statement was allegedly concerned, even some of the critics of the orthodox rule concede that cross-examination on the prior statement is futile. E.g., Falknor, The Hearsay Rule and Its Exceptions, 2 U.C.L.A.L. REV. 43, 53 (1954); Comment, Substan- tive Use of Extrajudicial Statements of Witnesses Under the Proposed Federal Rules of Evidence, 4 U. RICH. L. REV. 110, 119 (1969). 39. E.g., 5 WIGMIORE, supra note 1, § 1399 ("a secondary and dispensable element"). 40. Meiner v. Ford Motor Co., 17 Cal. App. 3d 127, 140, 94 Cal. Rptr. 702, 710 (1971). November 19741 PRIOR INCONSISTENT STATEMENTS given the nuances of tone and expression which give the statement life and which form the basis of human judgments of credibility.

Prior Statement, Prior Cross-Examination The above discussion has been limited to situations in which the prior inconsistent statement was made in either a nonjudicial setting or one which lacked an opportunity for immediate cross-examination. A different problem is presented when the context of the prior statement did allow for cross-examination at the time the statement was made, enabling the cross-examiner to "strike while the iron was hot." Typically such a setting is a preliminary hearing or other pretrial proceeding, or a former trial, at which (we will assume) the statement was made under oath, and subject to cross-examination. Have the objections to substantive use at a subsequent trial now been met? It is again necessary to examine the three factors which underlie the hearsay rule. Seemingly the requirement of an oath is fulfilled: if the threat of damnation for lying and/or imprisonment for perjury is some assur- ance of truth at the time the statement is made, it does not necessarily diminish with subsequent repetition. Presumably, however, the witness has lied or at least testified inaccurately under oath at least once- either at the present hearing or the prior one, or possibly at both- leaving little significance to his prior oath-taking. Cross-examination is more difficult to assess. First it is necessary to establish precisely what took place at the prior and subsequent hearings. In criminal proceedings, for example, preliminary hearings do not assess guilt, but only probable cause for further prosecution. 41 Thus the issues at the preliminary stage are different from those at trial. The magistrate before whom a preliminary hearing is held need not be convinced of an accused's guilt beyond a reasonable doubt, but need only, in effect, entertain a reasonable doubt of his innocence. 42 There-

41. E.g., 18 U.S.C. § 3060 (1970); FED. R. CRIM. P. 5(c); CAL. PEN. CODE § 872 (West 1970); cf. Barber v. Page, 390 U.S. 719, 725 (1968). 42. Typical is section 872 of the California Penal Code, requiring a finding of "sufficient cause to believe the defendant [is] guilty." CAL. PEN. CODE § 872 (West 1970). This has been interpreted by the California courts as the equivalent of "probable cause" and nothing more than the same suspicion required to justify an arrest or the issuance of a search warrant. E.g., Williams v. Superior Court, 71 Cal. 2d 1144, 458 P.2d 987, 80 Cal. Rptr. 747 (1969) (arrest); People v. Aday, 226 Cal. App. 2d 520, 38 Cal. Rptr. 199, cert. denied, 379 U.S. 931 (1964) (search warrant); see People v. Clark, 116 Cal. App. 2d 219, 223, 253 P.2d 510, 513, cert. denied, 348 U.S. 902 (1953) (a state of facts which would "lead a man of ordinary. . . prudence to believe, and con- scientiously entertain a strong suspicion" of guilt). THE HASTINGS LAW JOURNAL [Vol. 26 fore, a cross-examination which might be sufficient to raise a reasonable doubt of guilt in the minds of the ultimate triers of fact, but would be insufficient to dispel all doubt of innocence from the mind of the magistrate, would be better left for trial than needlessly exposed at a time when it can be of no value. Simply as a matter of tactics, many trial attorneys will attempt to avoid "showing all their cards" during the preliminary hearing, but will allow false testimony to go unchallenged until the trial, when exposure of its falsity can be utilized to greatest advantage.43 Furthermore, by law a preliminary hearing must take place very soon after the initial arrest of the accused, 4 before his counsel (or, for that matter, the prosecution) has had an adequate opportunity to assess and investigate the testimony and other evidence available to him. Thus even were full cross-examination at the preliminary hearing considered tactically desirable, counsel on either side would likely be without adequate resources and preparation for its most effective use. The above considerations were discussed at some length in the California Supreme Court's first Green decision, and were reiterated in the dissenting opinion of Mr. Justice Brennan upon the reversal of that decision. Quoting prior California authorities, Justice Brennan pointed out that in California, as in most jurisdictions, the preliminary examination is conducted as a rather perfunctory uncontested proceeding with only one likely denouement-an order holding the defendant for trial. Only television lawyers cus- tomarily demolish the prosecution in the magistrate's court.45 Elaborating on the perfunctory nature of the preliminary hearing, Jus- tice Breunan continued: In the hurried, somewhat pro forma context of the average prelim- iminary hearing, a witness may be more careless in his testimony than in the more measured and searching atmosphere of a trial. Similarly, a man willing to perjure himself when the consequences are simply that the accused will stand trial may be less willing to do so when his lies may condemn the defendant to loss of liberty.46 Even assuming that no such impediments to cross-examination exist at the preliminary stage, it must be remembered that the magistrate before whom that questioning occurs will in all likelihood not be

43. See, e.g., F. BAILEY & H. ROTHBLATr, SUCCESSFUL TECHNIQUES FOR CRIMINAL T ALs § 25 (1971); Hollopeter, Preliminary Examination, in CALIFOMNA CRIMINAL LAW PRACICE § 6.11, at 241-42 (1964). 44. E.g., CAL. PEN. CODE § 859b (West Supp. 1974) (defendant in custody has right to preliminary examination within 10 days of arraignment). 45. 399 U.S. at 196, quoting People v. Gibbs, 255 Cal. App. 2d 739, 743-44, 63 Cal. Rptr. 471, 475 (1967). 46. 399 U.S. at 199. November 19741 PRIOR INCONSISTENT STATEMENTS

the trier of fact before whom the prior inconsistent statement is presented at trial. Thus in order for cross-examination at the preliminary stage to have any effect at all, it must be placed in the record available to the subsequent trier of fact. In other words, unless that cross-examination is read into the record or otherwise made known to the trier of fact, its effect on the magistrate and the potential damage it may have done to the direct testimony will be lost.

Demeanor Evidence and Cross-Examination These practical problems with cross-examination at a prior proceeding are not the only considerations that militate against the use of prior inconsistent statements for their substantive value. Let us assume that there was a full and far-ranging cross-examination of the declarant at the time he made his prior statement, and that this cross- examination is presented to the subsequent trial jury verbatim. At this point the interplay of cross-examination and demeanor becomes rele- vant. As indicated earlier, one of the three factors which render a hearsay statement of limited evidentiary value is that it was made under circumstances which deprive the present trier of fact of an opportunity to observe the declarant as he makes the statement. The same is true of cross-examination: both questions and answers can take on vastly different meaning or weight if reduced to a mere written record. Jus- tice Brennan, again quoting the California opinion in Green, points out that a mere reading of the cross-examination loses "the more subtle yet undeniable effect of counsel's rhetorical style, his pauses for emphasis and his variations in tone, as well as his personal rapport with the jurors . . . . ,4 Even were they transferable, a style and emphasis appropriate for an examining magistrate may be far from that employed by a cross-examiner before a jury. In any event, the role of demeanor during cross-examination goes beyond mere observation of the cross-examiner's style. Without the opportunity to view the witness, the trier of fact is deprived of a di- mension which can easily mean the difference between belief and dis- belief, "for on the issue of veracity the bearing and delivery of a witness will usually be the dominating factors."4

47. Id. "The cross-examiner must remember that he is a performer and the jurors are his audience. No good performer ignores his audience, and all performances are conducted for the purpose of favorably impressing the audience." Id. at 198, quoting People v. Green, 70 Cal. 2d 654, 662, 451 P.2d 422, 427, 75 Cal. Rptr. 782, 787 (1969). 48. NLRB v. Universal Camera Corp., 190 F.2d 429, 430 (2d Cir. 1951) (L. Hand, J.). THE HASTINGS LAW JOURNAL [Vol. 26

The liar's story may seem uncontradicted to one who merely reads it, yet it may be "contradicted" in the trial court by his manner, his intonations, his grimaces, his gestures, and the like-all matters which "cold print does not preserve" and which constitute "lost evidence" so far as an upper court is concerned. 49 The words of a witness under cross-examination will often be the least important part of his response, and of little or no concern to the cross- examiner. A considerable victory can be won by the cross-examiner who elicits-for all to observe-not an admission of falsehood, but a quavering denial, an angry protestation, or a nervous silence. The most acute observer would never be able to catalogue the tones of voice, the passing shades of expression or the unconscious gestures which he had learnt to associate with falsehood; and if he did, his observations would probably be of little use to others. 0 This was apparently recognized by the Supreme Court's Advisory Com- mittee itself, for it stated in its comment to rule 804(b) (1) (the former testimony exception) that "opportunity to observe demeanor is what in a large measure confers depth and meaning upon oath and cross- examination."'' 1 This is not to say that the witness's present demeanor or tone are of no value to the trier of fact; however, as is true of present cross- examination, they may expose present falsehood or uncertainty while leaving the jury little basis for assessing whether the prior statement suffered the same or other defects. Nevertheless, Judge Learned Hand at one time maintained that:

49. Broadcast Music v. Havana Madrid Restaurant Corp., 175 F.2d 77, 80 (2d Cir. 1949) (Frank, J.). See also Arnstein v. Porter, 154 F.2d 464, 470 (2d Cir. 1946). The importance to trial lawyers of demeanor evidence is illustrated by the develop- ing field of videotape depositions, which offer the possibility of presenting to the jury the actual examination of a deponent, complete with demeanor preserved on tape, rather than a reported stenographic transcript. As one experienced trial lawyer has stated, "A pause or an inflection can mean the difference between doubt and certainty; a smile the difference between sarcasm and sincerity; a frown the difference between bias and hos- tility." Miller, Videotaping the Oral Deposition, 18 PRAC. LAW. 45, 45-46 (Feb. 1972). Wigmore, while dismissing demeanor as of secondary value in the context of the hearsay rule, nevertheless in a discussion of electronic recording of testimony during trial extols the virtue of demeanor evidence. 3 J. WIGMORE, A TREATISE ON THE SYSTEM OF EVIDENCE AT COMMON LAW § 809, at 276-77 (Chadbourn Rev. 1970), quoting Mc- Bride v. State, 368 P.2d 925, 928-29 (Alas. 1962). See generally Sahm, Demeanor Evi- dence: Elusive and Intangible Imponderables,47 A.B.A.J. 580 (1961). 50. Stephen, THE INDIAN EVIDENCE ACT, WITH AN INTRODUCTION ON THE PRINCI- PLES OF JUDICIAL EVIDENCE 41-43, quoted in Sahm, Demeanor Evidence: Elusive and Intangible Imponderables, 47 A.B.A.J. 580, 581 (1961). 51. RULES OF EVIDENCE FOR THE UNITED STATES COURTS & MAGISTRATES, rule 804(b)(1), Advisory Committee's Note, in 34 L. Ed. 2d lxxiii, clxxix (1972) [hereinafter cited as PROPOSED RULES]. November 19741 PRIOR INCONSISTENT STATEMENTS

[t]he possibility that the jury may accept as the truth the earlier statements in preference to those made upon the stand is indeed real, but we find no difficulty in it. If, -from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no myth- ical necessity that the case must be decided only52 in accordance with the truth of words uttered under oath in court. Although this generalization was considerably limited by Judge Hand in a later case,5 3 his earlier words have greatly buoyed the advocates of the unorthodox view, and not without reason. It is true that the jury, in such a circumstance, are in fact "deciding from what they see and hear of that person and in court"; the only question is the practical reliability of judging the credibility of an earlier statement wholly from "what they see and hear" at a later time. Merely to assume that this is sufficient begs the question. The issues discussed here in the context of a criminal trial and a preliminary hearing are not limited to such a narrow (though far from infrequent) set of circumstances. For example, a prior inconsistent statement might have been made by a witness at a former civil trial, where there was, at least nominally, an opportunity to cross-examine. Here the same problems arise, but in a slightly altered form. The setting of the former trial (including the cause of action involved and the purpose of the testimony in question) might well have rendered cross-examination, while theoretically available, tactically or practically unfeasible. The stakes might have been lower, the issues less likely to produce a truthful statement." For example, the first action might have been over a $100 contract, while the present one may be a matter of life or liberty.55 If the parties were different, the present plaintiff or defendant must rely on the ability and/or tactical judgment of who-

52. DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir.), cert. denied, 268 U.S. 706 (1925). Compare Judge Hand's later statement, quoted in text accompanying note 48 supra. 53. United States v. Block, 88 F.2d 618, 620 (2d Cir. 1937). 54. See, e.g., United States v. Nuccio, 373 F.2d 168, 173 (2d Cir.), cert. denied, 387 U.S. 906 (1967). 55. Compare the evidentiary use of prior judgments, which is limited in effect to prior felony cases, in which the stakes and the standard of proof are both sufficiently high to assure that the matter was fully and fairly litigated. Cf. PROPOSED FED. R. Evu,. rule 803(22), H.R. 5463, 93d Cong., 1st Sess. § 803(22) (1974); CAL. Evm. CODE § 1300 (West 1966). Were this not the case, every minor misdemeanor would necessitate a full defense on every issue, lest the judgment prove ruinous in a subsequent civil action for far higher stakes. Compare also the question of opportunity and incentive to litigate an issue upon which collateral estoppel is invoked. E.g., Berner v. British Commonwealth Pac. Airlines, Ltd., 346 F.2d 532 (2d Cir. 1965). THE HASTINGS LAW JOURNAL [Vol. 26

ever conducted the prior cross-examination. 56 Problems of the trans- ferability of a prior cross-examination to a present trier of fact (demeanor, etc.) are similarly as prevalent in the context of a prior trial as in that of a prior preliminary hearing. The California court in Green57 succinctly summed up the orthodox position when it asserted that only contemporaneous cross-examination is truly effective, and contemporaneous means at the time the statement is made and before the trier of fact who must ultimately determine credibility. "In short, cross-examination neither may be nunc pro tune nor may it be tune pro nunc."58

The Federal Rules of Evidence The above discussion is the background upon which the Supreme Court's Advisory Committee and later the House Judiciary Committee drafted their respective versions of the Federal Rules of Evidence.59 What emerged was an initial attempt by the Advisory Committee to take an extreme unorthodox approach, and a final compromise which, while far from satisfactory to everybody, at least does not wholly reject the basic premises of either theory. As originally drafted by the Advisory Committee, rule 801 de- fined prior inconsistent statements out of the hearsay rule entirely. Rule 801(d)(1) provided that: A statement is not hearsay if- (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony 60 There was no qualification to the sweeping admission of prior inconsistent statements, so long as there was opportunity for cross-examination at the subsequent hearing. This proposal represented a substantial abandonment of the traditional hearsay concept, while nevertheless rejecting the even more extreme (but perhaps logically consistent)

56. Under the proposed Federal Rules, this is a very real problem. See note 66 & accompanying text infra. 57. 70 Cal. 2d 654, 451 P.2d 422, 75 Cal. Rptr. 782 (1969), vacated sub nom., California v. Green, 399 U.S. 149 (1970). 58. Id. at 661, 451 P.2d at 426, 75 Cal. Rptr. at 786. 59. For a brief account of the checkered history of the proposed Federal Rules of Evidence, see Reutlinger, Policy, Privacy and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege, 61 CALiF. L. REv. 1353, 1353-54 (1973), & authorities cited therein. 60. PROPOSED RULES, supra note 51, rule 801(d)(1 ), at cliv. November 19741 PRIOR INCONSISTENT STATEMENTS position of the Uniform Rules of Evidence,61 which sought to admit any out-of-court statement by a present witness. The Advisory Com- mittee accepted the position of the California Law Revision Commis- sion, which drafted the California Evidence Code, regarding the suf- ficiency of subsequent cross-examination before the present trier of fact, the prior statement's greater credibility because of its proximity in time to the events in question, and the need to protect a party against 62 a "tumcoaf' witness. The relevance of a prior statement's greater proximity to an event has already been discussed. 63 As indicated, any lack of effective cross- examination is not significantly alleviated by greater proximity, although where faulty recollection is a possible factor the trier of fact will properly consider the time between testimony and event as rele- vant to credibility. As for the "turncoat" witness, while the fact that the testimony elicited at trial does not conform to that hoped for or expected by the examiner might be a legitimate basis for a claim of surprise and a request for continuance, it is questionable whether this is sufficient reason to raise the prior untested statement to the same level as in-court testimony. Initially the Criminal Justice Subcommittee of the House Judici- ary Committee, in its sometimes sweeping amendments to the Advisory Committee's proposals, added the requirement that the prior statement be made under oath.6 4 After critical comment was received from members of the Bar, pointing out inter alia the questionable significance of the oath, 5 a further revision was made and the present compromise emerged. As it left the Judiciary Committee, rule 801(d)(1) provided (and presently provides): A statement is not hearsay if- (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony and was given under oath subject to cross-examination, and subject

61. UNiFoRm RULES OF EviDENcE rule 63(1). 62. PROPOSED RULES, supra note 51, rule 801(d) (1), Advisory Committee's Note, at clvi-vii. See also CAT. Evi. CODE § 1235, Comment-Law Revision Comm'n (West 1966). 63. See text accompanying notes 24-26 supra. 64. The original proposals of the subcommittee were contained in a special supple- ment to United States Law Week. 42 U.S.L.W. No. 3 (July 17, 1973). Comments from members of the bench and bar were invited, and were later published by the subcommittee. See Hearings on H.R. 5463 Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary,93d Cong., 1st Sess., ser. 2, at 170 (1973). 65. See text accompanying note 8 supra. THE HASTINGS LAW JOURNAL [Vol. 26

to the penalty of perjury at a trial or hearing or in a deposition

Note that the rule, while requiring an opportunity for cross-examination at both the prior and subsequent stages, omits any requirement that the prior cross-examination have been by the party against whom the statement is now offered (or even a similarly interested party), or under circumstances in which the motive and interest to cross-examine were similar. This is not only ill-advised for reasons already stated, but it is somewhat inconsistent with rule 804(b) (1), concerning prior testimony. There the Judiciary Committee rejected the Advisory Committee's recommended admission of testimony which had been subject to cross-examination by any person with motive and interest similar to the present party's. The committee explained: [I]t is generally unfair to impose upon the party against whom the hearsay evidence is being offered responsibility for the manner in which the witness was previously handled by another party. The sole exception to this, in the Committee's view, is when a party's predecessor in interest in a civil action or proceeding had an opportunity and similar motive to examine the witness. 66 If imposition of responsibility for cross-examination by another party, or by any person without a similar motive and interest, is unfair in the case of prior testimony, it can certainly be argued that it is equally in- equitable and unavailing in the case of prior inconsistent statements.

Conclusion To some extent, the long debate over the admissibility of prior inconsistent statements is a controversy over the fundamental premises underlying the hearsay rule itself: is it sufficient for admission of a secondhand statement merely that the declarant is available to testify at the time of trial? More narrowly, it is a controversy over whether noncontemporaneous cross-examination is as reliable as contemporaneous cross-examination in eliciting the truth before a trier of fact; and, if not, whether the degree of reliability sacrificed is compensated for by the need to place "all the evidence" before the jury. The burden of the foregoing analysis is that substantive use of

66. H.R. REP. No. 650, 93d Cong., 1st Sess. 15 (1973) (emphasis added). That prior cross-examination by anyone but one with similar motive and interest has no trans- ferability to a later proceeding is a matter of common sense, and has generally been recognized by recent formulations of the former testimony exception. See, e.g., CAL. EvID. CODE §§ 1291-92 (West 1966). For a detailed discussion of the criteria which should determine whether "motive and interest" were indeed sufficiently similar, and a criticism of the approach taken by the proposed Federal Rules, see Martin, The Former Testi- mony Exception in the Proposed Federal Rules of Evidence, 57 IowA L. Rv. 547, 555- November 19741 PRIOR INCONSISTENT STATEMENTS prior inconsistent statements may involve a far more substantial sacri- fice of cross-examination efficacy than most critics of the orthodox rule have been willing to concede. While this does not resolve the problem in that rule's favor, it does draw the lines of battle a bit more clearly: those who would admit such statements should recognize that to a great extent it is not because they are truly as reliable as--or more reliable than-present in-court testimony; rather, it represents a conscious choice to favor, as in other areas of evidentiary law,67 greater ease of admissibility and fewer hindrances in the form of exclusionary rules. The present Supreme Court surely represents the vanguard of this philosophy in America, and the original draft of the proposed Federal Rules was clearly biased in favor of such freer admissibility. 68 The Congress' version of the Federal Rules is, as most congressional policies tend to be, a compromise, following the trend toward permissive evidentiary rules but not quite so far as many reformers had hoped. Whether Congress has begun the process of reversing the present trend or has only delayed it slightly will perhaps be known when, in the future, other jurisdictions formulate or reformulate their own versions of evidentiary reform.

65 (1972). 67. E.g., Gustafson v. Florida, 414 U.S. 260 (1973) (search and seizure); Kasti- gar v. United States, 406 U.S. 441 (1972) (compelled testimony); Harris v. New York, 401 U.S. 222 (1971) (statements of accused). 68. See, e.g., Reutlinger, Policy, Privacy, and Prerogatives: A Critical Examina- tion of the Proposed Federal Rules of Evidence as They Affect Marital Privilege, 61 CAIn. L. REv. 1353 (1973).